Gerhart v. Holyoke St. Ry. Co.

• Decision Date: 19 October 1920
• Citation: 128 N.E. 421,236 Mass. 392
• Parties: GERHART v. HOLYOKE ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

236 Mass. 392

128 N.E. 421

GERHART

v.HOLYOKE ST. RY. CO.

Supreme Judicial Court of Massachusetts, Hampden.

Oct. 19, 1920.

Exceptions from Superior Court, Hampden County; Richard W. Irwin, Judge.

Action by Ernest Gerhart against the Holyoke Street Railway Company. Verdict for plaintiff, and defendant excepts. Exceptions overruled.

T. J. O'Connor, of Holyoke, and R. J. Morrissey and J. L. Gray, both of Springfield, for plaintiff.

Brooks, Kirby, Keedy & Brooks, of Springfield, for defendant.

JENNEY, J.

The plaintiff seeks to recover compensation for damages sustained by him, at about 9 o'clock in the evening of July 31, 1915, when he was hit by the running board of an open electric car of the defendant on Chicopee street, in Chicopee. The double track of the defendant occupied a space fourteen feet seven inches in width in the center of the roadway, which was about forty feet wide between the curbs. The distance between the easterly curb and the most easterly rail was twelve feet ten inches; and that between the most westerly rail and the westerly curb was twelve feet six inches. At or very near the point where the accident happened, there was a regular stopping place for cars. The street was well lighted and the ‘strong, brilliant’ headlight of the car was on. The tracks were in process of reconstruction, ‘the street between both lines of track’ being ‘pretty well ripped up’ with a ‘lot of trap rock’ between the rails but not so high as the rails. The plaintiff was thoroughly familiar with the conditions then existing. The sole question is whether the defendant's motion for a directed verdict in its favor was denied rightly.

The jury upon the contradictory evidence would have been warranted in finding the facts as follows: The plaintiff who had been standing in a doorway on the easterly side of the street saw the car with which he collided when it was about four hundred and fifty feet from him and as it came around an angle in the street, and thereafter his view of it was unobstructed. He left the doorway, crossed the sidewalk and entered upon the travelled road, holding in his hand a folded newspaper and motioning with it to the motorman to stop. It was necessary for the plaintiff to cross both tracks in order to take the car. The car, which had been going seven or eight miles an hour, slowed down and then started to ‘move again quick.’ The plaintiff saw the diminution in its speed. The motorman although he saw the plaintiffbefore he was on either track did not observe his signal to stop. The plaintiff was hit by the running board when he was just crossing the westerly track, but before he had fully got over it. Just before he had ‘got pretty nearly across' he saw an automobile approaching from the south on the westerly or left hand side of the street and ‘coming pretty close’ to the westerly track. When he saw the automobile he faced it with his back to the car, which at that instant was either seven or eight feet away from him, or about thirty or thirty-five feet distant; the smaller figures being...