Finnick v. Boston & N. St. Ry.

• Decision Date: 28 February 1906
• Citation: 77 N.E. 500,190 Mass. 382
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: FINNICK v. BOSTON & N. ST. RY.

190 Mass. 382

77 N.E. 500

FINNICK

v.BOSTON & N. ST. RY.

Supreme Judicial Court of Massachusetts, Middlesex.

Feb. 28, 1906.

Exceptions from Superior Court, Middlesex County; Wm. C. Wait, Judge.

Action by one Finnick against the Boston & Northern Street Railway. There was a verdict for plaintiff, and defendant brings exceptions. Overruled.

1. STREET RAILROADS-INJURIES TO TRAVELLER-NEGLIGENCE-EVIDENCE-SUFFICIENCY.

Evidence in an action against a street railway company for injuries received by a person struck by a car examined, and held to justify a finding of actionable negligence on the part of the company.

2. STREET RAILROADS-CONTRIBUTORY NEGLIGENCE-QUESTION FOR JURY.

Evidence in an action against a street railway company for injuries received by a person struck by a car examined, and held to justify a finding that the person was not guilty of contributory negligence.

[Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Street Railroads, s 249.]

3. STREET RAILROADS-OBLIGATION TO EXERCISE CARE.

A person approaching a street car track is not bound by any strict rule of law to stop and look and listen as on approaching a railroad crossing; but he must use the degree of care which an ordinarily prudent man would exercise under similar circumstances.

[Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Street Railroads, s 208.]John J. & W. A. Hogan, for plaintiff.

Foster & Turner and Richardson, Trull & Wier, for defendant.

LORING, J.

The plaintiff, a milkman, was delivering milk on his regular route about half past 4 in the morning of April 15, 1904, when he was injured by being run into from behind by a special car of the defendant. The accident happened on Gorham street, in the city of Lowell, just north of Cosgrove street, which runs at right angles to Gorham street. The plaintiff, who had been delivering milk in Cosgrove street, drove in an easterly direction down Cosgrove to Gorham, and turned into Gorham to drive north to Anderson street, a street leading out of Gorham street on the same side as Cosgrove street. Gorham street was 40 feet wide between the curbstones. In the center there was a double track of the defendant company, and the space between the easterly track and the east curbstone was 10 1/2 feet. As the plaintiff swung into Gorham street his nigh wheels ‘went over’ between the rails of the easterly track of the defendant. The plaintiff testified ‘that as he drove his horse and wagon easterly out of the tracks to get into the space between the easterly curbstone of the street and the easterly rail of the defendant, and before his hind wheel had left the rail, the car of the defendant going northerly struck his team when about 60 feet from Cosgrove street.’ He was thrown from his seat to the ground, the wagon was pushed along Gorham street about 20 feet after it was struck by the car, up against a post, and came to a stop about 100 feet beyond the post. The plaintiff also testified that he had driven over the milk route for 10 years, never had seen a car go by ‘there’ at the hour in question during that time, and that the time for the first regular car was 10 minutes after 5. He admitted that ‘he did not look in any direction for a car, or listen for a car, or think anything about a car as he drove up Cosgrove street and onto Gorham street’; that at the time of the accident it was not daylight, but gloom; and that ‘at no time before his wagon was struck by the car did he hear any gong strike, or hear any notice or warning of any kind from the men who had control of the car.’ The defendant introduced evidence that the car was a special car which had been to Billerica and was on its way back; that it was going 10 or 12 miles an hour; that the plaintiff's wagon was seen by the motorman when the car was ‘about 50 feet from the southerly line of Cosgrove street’; that at the time the horse ‘was just turning from Cosgrove to Gorham street’; that ‘he applied the brake and the reverse, but before he could bring the car to a stop it struck the hind wheel of the plaintiff's wagon; that a bright electric headlight threw a pencil of light about 8 feet in width and confined to the track for a distance of about 1,000 feet, and which shut out the motorman's view of objects outside the ray of said pencil.’ The defendant also introduced evidence of snow plows and sand cars which ran over the tracks between 11:20 p. m. and 5:10 a. m.

At the close of the evidence the defendant asked for a verdict, as matter of law. This was refused, and the defendant took an exception. The presiding judge instructed the jury that ‘a person in approaching a street railway track is not bound by any strict rule of law, as when he approaches a steam railroad crossing, to stop and look and listen, or to take special precautions in order to determine whether there is danger to him in going upon the tracks; but, while the law does not say that he must stop and look and listen, it does say that he must use the degree of care which an ordinarily prudent and careful person would exercise, placed in the same position, and it is for you to say whether, upon the evidence in this...