Glassey v. Worcester Consol. St. Ry. Co.

• Decision Date: 31 March 1904
• Citation: 185 Mass. 315,70 N.E. 199
• Parties: GLASSEY v. WORCESTER CONSOLIDATED ST. RY. CO. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

185 Mass. 315

70 N.E. 199

GLASSEY v. WORCESTER CONSOLIDATED ST. RY. CO. (two cases).

Supreme Judicial Court of Massachusetts, Worcester.

March 31, 1904

COUNSEL

A. P. Rugg and Charles W. Saunders, for plaintiffs.

Charles C. Milton and Chandler Bullock, for defendant.

OPINION

MORTON, J.

These two cases were tried and have been argued together. At the close of the plaintiffs' evidence in the superior court the presiding justice ruled, at the defendant's request that the plaintiffs could not recover, and directed verdicts for the defendant. The cases are here in exceptions by the plaintiffs to these rulings. The case of the plaintiff Rachel, who is a married woman, is for injuries alleged to have been received by her in consequence of the negligence of the defendant in leaving a large reel by the side of or in Cameron street, in Clinton, which some boys rolled down the street, and which struck the carriage in which the plaintiff was driving, and threw her out, and caused the injuries complained of. The other action is by the husband for the loss of consortium and the expenses incurred by him by reason of the injuries to his wife.

The evidence would have warranted a finding, and, for the purposes of these cases, we assume that such was the fact that the reel belonged to the defendant, and had had feed wire upon it, which had been strung upon its poles by persons in its employ. But it is not clear whether the reel was left on a vacant piece of land just outside the limits of the highway, or whether it was left within the limits of the highway. We assume, as most favorable to the plaintiffs, that it was left within the limits of the highway. The uncontradicted testimony shows, however, that it was left outside the traveled portion of the highway, lying on its side in the grass in a secure position. The plaintiffs introduced in evidence a by-law of the town forbidding persons to leave obstructions of any kind in the highway without a written license from the road commissioners or other board having charge of the streets, and they contend that, if the reel was left within the location of the highway, when forbidden by the by-law, that of itself constituted such negligence as renders the defendant liable. But the most, we think, that can be said of this contention, is that the leaving of the reel within the limits of the highway was evidence of negligence, not that in and of itself it rendered the defendant liable, or should be held, as matter of law, to have contributed directly to the accident. Hanlon v. South Boston R. Co., 129 Mass. 310. The question is whether, in leaving the reel lying on its side in the grass, near the road, the defendant ought reasonably to have anticipated that children passing along the street on their way to school, or for other purposes, would take it from the place where it had been left, and engage in rolling it up and down the street, and that travelers on the highway would thereby be injured. The question is not whether a high degree of caution ought to have led the defendant to anticipate that such a thing might possibly occur, but...