Dudley v. Kingsbury
| Decision Date | 15 June 1908 |
| Citation | 85 N.E. 76,199 Mass. 258 |
| Parties | DUDLEY v. KINGSBURY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John McKean, for plaintiff.
Brooks & Hamilton, for defendant.
The plaintiff was a conductor or in the employ of the Springfield Street Railway Company. While on the running board of a car in the act of collecting fares, he was injured by a collision between an automobile owned and managed by the defendant and the car. This is an action to recover for the injuries so received. There was a verdict for the plaintiff and the case is here on exceptions by the defendant to the refusal of the court to give various rulings that were requested.
There are three questions: (1) As to the plaintiff's due care (2) as to the negligence of the motorman of the car; and (3) as to the defendant's negligence. To questions put to them by the presiding judge after they had returned their verdict the jury answered that the plaintiff and motorman were in the exercise of due care, and that the defendant was negligent. We think that the case was rightly submitted to the jury and we discover no error in regard to the instructions that were given or refused.
1. As to the plaintiff's due care. The plaintiff was where he had a right to be and was engaged in the performance of his duty, and whether he should have seen and guarded against the danger of a collision and have exercised more supervision over the motorman, and whether, taking all of the circumstances into account, he was in the exercise of due care was plainly for the jury.
2. As to the negligence of the motorman. We assume in the defendant's favor that if the motorman's negligence caused or contributed to the collision the plaintiff cannot recover. Yarnold v. Bowers, 186 Mass. 396, 71 N.E 799; Allyn v. B. & M. R. R., 105 Mass. 77. The instructions on this point were, to say the least sufficiently favorable to the defendant. We do not see how it could have been ruled as matter of law that the motorman was negligent. The question of due care or negligence is ordinarily one for the jury. When the facts are undisputed it becomes one of law. In this case it was for the jury to determine what the facts were and then decide whether they showed that the motorman was or was not negligent. Whether he should have discovered the plight of the automobile before he did and whether he exercised proper care in the way in which he...
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