Fairbanks v. Boston Elevated Ry. Co.

• Decision Date: 07 January 1921
• Citation: 129 N.E. 367,237 Mass. 127
• Parties: FAIRBANKS v. BOSTON ELEVATED RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

237 Mass. 127

129 N.E. 367

FAIRBANKS

v.BOSTON ELEVATED RY. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 7, 1921.

Exceptions from Superior Court, Suffolk County; James H. Sisk, Judge.

Action by Rose Fairbanks against the Boston Elevated Railway Company. Verdict for plaintiff, and defendant excepts. Exceptions sustained, and judgment ordered entered for defendant.

Freeman Hunt, of Boston, for plaintiff.

E. P. Saltonstall and L. Saltonstall, both of Boston, for defendant.

DE COURCY, J.

The plaintiff was struck by the rear end of an electric car as it swung from Boylston street into Ipswich street in Boston, on November 9, 1918, at about 8 a. m. Boylston street runs in an easterly direction from Brookline to Boston; and at the place of the accident is about 50 feet in width from curb to curb, level and straight. Ipswich street runs northerly from Boylston street at substantially a right angle therewith, and is about 55 feet wide from curb to curb. In the center of Boylston street are double tracks of the defendant, which turn into Ipswich street and do not extend farther on Boylston street. On the latter street, just before the turn of the tracks, there is a white post where cars inbound from Brookline stop on signal. On that morning, and for some days previous, Boylston street was being repaired by the city. The surface of the street between the outer rail of the inbound track and the curbstone was excavated to within ten feet from said post, on the side toward Brookline, and large piles of paving stones and material were deposited upon the street. The motorman testified that the stop at said white post had been temporarily discontinued, and that orders were given the night before, and that morning, to stop around the corner on Ipswich street.

The car which struck the plaintiff was inbound bound from Brookline. It was a large semiconvertible car, 46 feet 2 3/4 inches long, 8 feet 8 inches wide, with an overhang of 1 foot 10 3/4 inches with the step up, and 6 inches more with the step down. In rounding this curve the rear end of the car would swing out until its maximum overhang beyond the outer rail was 4 feet.

According to the plaintiff's testimony she stood at the post, with several other people waiting for an inbound car. She frequently had taken cars at this point prior to the accident. As this car came along it slowed up; and when the front end was opposite the post these people started from the sidewalk. While the plaintiff was walking toward the moving car, somebody back of her spoke, and she turned her head to the right, away from the car, and kept on walking. The door of the car was not opened, and the car did not stop, but instead put on a spurt and started ahead suddenly. The plaintiff was struck by the overhang as the car swung around the curve.

Assuming that the plaintiff, on all the evidence, was entitled to go to the jury on the issue of her due care, we fail to find in the record any evidence warranting a finding of negligence on the...