Evensen v. Lexington & B. St. Ry. Co.

• Decision Date: 23 November 1904
• Citation: 72 N.E. 355,187 Mass. 77
• Parties: EVENSEN v. LEXINGTON & B. ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

187 Mass. 77

72 N.E. 355

EVENSEN v. LEXINGTON & B. ST. RY. CO.

Supreme Judicial Court of Massachusetts, Worcester.

November 23, 1904

COUNSEL

Geo R. Warfield, for plaintiff.

John R Thayer, Arthur P. Rugg, and Henry H. Thayer, for defendant.

OPINION

HAMMOND J.

The team was owned and driven by Helchier, who was sitting upon the right-hand side, while Evensen, the plaintiff's intestate, was sitting on the left-hand side. The evidence tended to show that the latter 'was not feeling well,' and had the collar of his overcoat turned up, and that he had intrusted himself to the care of the driver. The question, therefore, upon this branch of the case, is whether Helchier was in the exercise of due care. It would serve no useful purpose to recite the evidence in detail. If the plaintiff's testimony is to be believed, Helchier, at several points on Academy lane, as he was approaching Sudbury Road, looked for the car. He was listening all the time, and he heard no gong or whistle, or anything else indicating the approach of a car. While at some points he could see two or three hundred feet up the track on Sudbury street, his view was wholly obstructed at others and, as he came near the corner of the two streets and near the track, the view was much obscured by overhanging trees, both upon the lane and upon the road. Upon this, in connection with the other evidence--especially that with reference to the speed of the car and the darkness--we cannot say, as matter of law, that Helchier was not in the exercise of due care. It was a question for the jury. Kelley v. Wakefield & Stoneham Street Railway, 179 Mass. 542, 61 N.E. 139.

It is strongly urged by the defendant that there was no evidence of gross negligence on the part of the servants of the defendant, that there is nothing to show that the rate of speed was any greater than usual, and that the failure to sound the gong is not of itself gross negligence. There is perhaps, no term of which it is more difficult to give a practically useful definition, or even to form a practical conception, than this term 'gross negligence,' as used in the statute under which this action is brought (Rev. Laws, c. 171, § 2), especially when the dividing line between that and what is called ordinary negligence is to be drawn. In some respects it is perhaps unfortunate that a right of action may be made to depend upon this dividing line. Of course, the greater includes the...