Gorham v. Milford, A. & W. St. Ry. Co.

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: KNOWLTON, C.J.
• Citation: Gorham v. Milford, A. & W. St. Ry. Co., 189 Mass. 275, 75 N.E. 634 (Mass. 1905)
• Decision Date: 19 October 1905
• Parties: GORHAM v. MILFORD, A. & W. ST. RY. CO.

189 Mass. 275

75 N.E. 634

GORHAM v. MILFORD, A. & W. ST. RY. CO.

Supreme Judicial Court of Massachusetts, Worcester.

October 19, 1905

COUNSEL

J. B. Ratigan and J. E. Swift, for plaintiff.

W Williams, J. C. F. Wheelock, and G. B. Williams, for defendant.

OPINION

KNOWLTON C.J.

The plaintiff's intestate, while walking along a road in the evening, was run over and killed by one of the defendant's electric cars. We will assume, in favor of the plaintiff, that there was evidence from which the jury might have found that the motorman was negligent just before the accident in being engaged in conversation with a passenger who sat near him on the front seat. The question before us is whether there was any evidence that the plaintiff's intestate was in the exercise of due care. He was familiar with the road on which the car was running, and he knew of the existence of the track and the use of it by electric cars. There was no sidewalk, and no regular path on the road. The track was on the right-hand side of the road as the plaintiff's intestate was facing, and the wrought portion, where pedestrians and ordinary vehicles were accustomed to pass, was on the left. The evening was dark and the car carried a headlight and other lights, which were said by some of the witnesses to be dim. When last seen, a short time before the accident, the plaintiff's intestate was walking on the left of the track, about 2 feet from it. Although, according to the testimony, he had three drinks of beer that evening, witnesses who saw him testified that he was perfectly sober. The last witness who saw him before he was struck was called by the plaintiff, and testified that he met him in the road and had a short conversation with him and then passed on, leaving him walking in the opposite direction, about 2 feet from the track. He also testified that the coming car was 'plain to be heard' at that time, and that he afterwards walked on about 150 feet from the place where he met the deceased, and there met the car going at the rate of 12 or 15 miles an hour in the same direction as the deceased.

In regard to the conduct of the plaintiff's intestate after he parted from this witness, we have no evidence. There is nothing to show that he was in the exercise of due care. If he was reasonably attentive to what was going on, and thoughtful of the dangers of the situation, it would seem that he easily could have kept out of the...