Fitzgerald v. Boston Elevated Ry. Co.

• Decision Date: 27 February 1907
• Citation: 80 N.E. 224,194 Mass. 242
• Parties: FITZGERALD v. BOSTON ELEVATED RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

194 Mass. 242

80 N.E. 224

FITZGERALD v. BOSTON ELEVATED RY. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

February 27, 1907

COUNSEL

J. J. Feely and Roger Clapp, for plaintiff.

Endicott P. Saltonstall, for defendant.

OPINION

LORING J.

The plaintiff started from the wrong, that is to say the left hand, side of a street, to cross the outward bound track of the defendant railway to take an inward bound car going to Boston. He testified that on seeing the inward bound car approach on the further track he looked both ways, did not see the outward bound car, and walked into it in going across the outward bound track to pass behind the inward bound car in order to board it. He said that the time when he looked was 20 seconds before he left the sidewalk, and it took about 20 seconds to walk across the road to the place where he was struck. A companion, McIsaac by name, who was crossing the street behind the plaintiff, said that as the plaintiff stepped on the outward bound track he, the plaintiff, looked back to see him, McIsaac. There was an arc light where the plaintiff was standing waiting for the car. It was agreed that the street at the place of the accident is straight for a distance of one-eighth of a mile from the place of the accident toward Boston. The accident happened at about midnight. It was a dark night and just misting rain. There was evidence that the outward bound car was going 20 miles an hour. On thse facts the judge directed a verdict for the defendant, and the case is here on an exception to that ruling.

Roberts v. N. Y., N.H. & H. R. R., 175 Mass. 296, 56 N.E. 559, relied on by the defendant, is not necessarily decisive of the case at bar because the crossing there in question was the crossing of a steam railroad. See Finnick v. Boston & Northern Street Ry., 190 Mass 382, 77 N.E. 500.

But the principle so clearly stated in Roberts v. N. Y., N.H. & H. R. R., 175 Mass. 296, 56 N.E. 559, is in our opinion applicable in case of a street railway. In our opinion, if one crossing the tracks of a street railway testifies that he looked to see if a car was coming (when the car was in fact in plain sight) and that he did not see it, he must have looked carelessly and is in no better position than if he had not looked at all; as to which see Itzkowitz v. Boston Elevated Ry., 186 Mass. 142, 71 N.E. 298; Dunn v Old Colony St. Ry., 186 Mass. 316, 71 N.E. 557; Donovan v. Lynn &...