Fitch v. Bay State St. Ry.

• Decision Date: 07 January 1921
• Citation: Fitch v. Bay State St. Ry. , 237 Mass. 65, 129 N.E. 423 (Mass. 1921)
• Parties: FITCH v. BAY STATE ST. RY. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

237 Mass. 65

129 N.E. 423

FITCH

v.BAY STATE ST. RY. (two cases).

Supreme Judicial Court of Massachusetts, Plymouth.

Jan. 7, 1921.

Exceptions from Superior Court, Plymouth County.

Actions by Charles R. Fitch and Cora B. Fitch against the Bay State Street Railway resulting in a verdict for plaintiff in each case, and defendant excepts.Exceptions in each case overruled.

Street railroads k99(4)-Stopping automobile on track held not negligence.

Where a husband, driving his wife and guests in his automobile, stopped on the street car track in order to assist his guests, one of whom was blind and the other a sufferer from paralysis, to reach their home, neither he nor his wife were negligent, precluding them from recovering from the street railway for injuries when a car came on them suddenly and struck the automobile before it could be started.

H. D. McLellan, of Boston, and Edward A. MacMaster, of Bridgewater, for plaintiffs.

Asa P. French and Jonathan W. French, both of Boston, for defendant.

BRALEY, J.

It having been stipulated at the trial that if either plaintiff was negligent a verdict should be returned for the defendant, the cases were submitted to the jury under instructions to which no exceptions appear to have been taken.The jury having found for the plaintiffs, the cases are here on the defendant's exceptions to the denial of its motions for a directed verdict, and to the refusal of the court to rule that upon all the evidence neither of the plaintiffs exercised due care.The jury would have been warranted in finding that the plaintiffs, who are husband and wife, accompanied by their son and daughter, and by Mr. and Mrs. Snow, with their daughter, were riding in Main street, a public way, in the husband's automobile driven by himself.The defendant's car track ran along the easterly edge of the street, and a gutter from 9 to 10 inches deep with sloping sides intervened between the track and sidewalk.The Snows lived on that side of the street and Mrs. Snow being blind, and Mr. Snow a sufferer from paralysis, Mr. Fitch, for the purpose of enabling them to reach their home, to which there was no driveway, as easily and safely as possible, after looking for but not seeing any car coming, drove upon the track in front of the Snow premises and stopped with the right-hand wheels in the gutter.A procession of automobiles was passing and it could be found on his evidence that because of the crowded thoroughfare it was safer to stop where he did than to stop in the roadway outside of the track.The rear lamp of the automobile was lighted, and after applying the emergency brake, he left the engine running, stepped out of the car, and with the aid of his son assisted Mr. Snow to alight, and lifted him over the sidewalk to the lawn.During the transfer, Mr. Snow dropped his cane.It was picked up by the plaintiff's son and...