Gould v. Boston and Maine Railroad.
| Decision Date | 20 February 1933 |
| Citation | 282 Mass. 160 |
| Parties | FERNALD N. GOULD, administrator, v. BOSTON AND MAINE RAILROAD. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
December 14, 1932.
Present: RUGG, C.
J., CROSBY, PIERCE FIELD, & LUMMUS, JJ.
Negligence Contributory, Street railway, Causing death, In use of way. Damages, In tort. Evidence, Presumptions and burden of proof Of speed.
At the trial of an action against a railroad corporation by an administrator under Pub. Laws of New Hampshire, c. 302, Sections 9-14, to recover damages for the death of his intestate, alleged to have been caused by the negligence of the defendant in the operation of a street car in a town in New Hampshire, there was evidence that after dark the decedent was riding beside his son, the plaintiff, in an automobile upon a snow covered highway; that neither of them had any knowledge of the fact that the street railway track extended along the right side of the highway at the place of the accident; that falling snow was obscuring the windshield and the decedent got out of the automobile to brush it off; that the son then saw the lights of an approaching street car, and, realizing that the tracks were there, warned the decedent and moved the automobile from the proximity of the track, and, after the street car passed, returned and found the decedent unconscious in circumstances warranting a conclusion that he had been struck by the street car. There was no evidence to show whether the deceased saw the approaching trolley car nor to show whether he heard the warning given by the plaintiff to look out for the car, nor as to what he was doing at the time he was
struck. Held, that by reason of the provisions of G.
L. (Ter. Ed.) c.
231, Section 85, the burden of proving contributory negligence of the decedent rested on the defendant; and the question, whether that burden had been sustained, was for the jury.
At the trial of the action above described, the motorman testified that he first saw the headlights of the automobile when he was a hundred yards or more from it; that when he was a little more than two hundred feet away he learned that it had stopped; that he turned off his bright are light fifty feet from the automobile, thus relying only on his incandescent light; and that he saw the decedent as the front end of the street car reached approximately the rear mudguard of the automobile and when the automobile began to move. There was evidence that the speed of the street car was twenty-five miles an hour and that its speed had not been reduced as it approached the automobile. Held, that the question, whether the motorman was negligent, was for the jury.
It was proper to permit the son to testify, at the trial above described, that as the street car came toward him it was travelling at a speed of twenty-five miles an hour.
Since Pub. Laws of New Hampshire, c. 302, Section 12, provided that in an action for negligently causing death the earning capacity of the decedent might properly be considered as an element of damages, it was proper, at the trial of the action above described, to admit evidence that the decedent received at his employment additional wages for overtime work, such evidence being material on the issue of his earning capacity.
The administrator who brought the action above described was the son of the decedent, and was one of several witnesses at the trial; and it was held, that the trial judge properly refused to rule, "The plaintiff is bound by his testimony of the happening of the accident." By reason of the provisions of Pub. Laws of New Hampshire, c. 302, Section
12, it was proper to instruct the jury in the action above described that in assessing damages the living expenses of the decedent's wife while she was living with him were not to be considered in appraising the loss to the decedent's estate.
TORT. Writ dated January 23, 1926. The action previously was before this court upon a report by F. T. Hammond, J., after trial in the Superior Court, a verdict was ordered for the defendant. In a decision reported in 276 Mass. 114 , this court ordered a new trial.
The second trial of the action was before Williams, J. Material evidence and exceptions saved by the defendant are described in the opinion. There was a verdict for the plaintiff in the sum of $3,792. The defendant alleged exceptions.
J. M. Maloney, (F.
F. O'Donnell & M.
J. Cohen with him,) for the defendant.
R. B. Walsh, for the plaintiff.
This is an action of tort brought by the plaintiff as administrator of the estate of James W. Gould, to recover damages for the death of his intestate, alleged to have been caused by the negligence of the defendant in the operation of one of its street cars in the town of Hookset, in the State of New Hampshire. The action is brought under Pub. Sts. of New Hampshire, c. 191, Sections 8-13, inclusive, now Pub. Laws of New Hampshire, c. 302, Sections 9-14, inclusive. The defendant's answer consists of a general denial and contributory negligence. The case was tried in the Superior Court to a jury. There was a verdict for the plaintiff. The case is before this court on exceptions to the denial of the defendant's motion for a directed verdict, to the admission of certain evidence, to the refusal of the judge to give a certain instruction, and to a part of the charge.
The plaintiff testified in his direct examination in substance as follows On November 29, 1924, he and his father, the intestate, left Concord about five o'clock in the afternoon in an automobile and travelled in a southerly direction. When he left Concord it was "snowing moderately" and was dark. They followed an electric car until they came to a fork in the road, the car turned to the right, and they went straight ahead and travelled down into Hookset. The windshield became clogged and the plaintiff drove the automobile to the right side of the road so that his father might get out and clean the windshield as it was then snowing very heavily. Just as his father stepped out the plaintiff saw an electric car approaching and he warned his father, saying, "Look out for the car." He then proceeded to move the automobile to the opposite side of the road because it looked as if he were in the way of the car. He paused for a few seconds and when his father did not come to him he got out and found him lying in the street. Two or three inches of snow had fallen which had covered the highway, and he could not see any street car tracks at the place where he came to a stop and did not know they were there; he saw no signs of previous traffic in the highway. The automobile he was driving had a left hand drive. His father had been seated on the front seat on the plaintiff's right. He pulled over to the right side of the road when he stopped so that if there was any traffic there would be room for it to pass. He left his motor running all the time. Both his headlights were lighted. It was dark. After he stopped the automobile and just as his father stepped out he saw the trolley car approaching. Before his father stepped out of the automobile he had to unlatch the curtains and it took a little time to release them. When he first saw the trolley approaching from the opposite direction his father was standing beside the right hand front door, and he warned him immediately and then, as soon as he could get the engine running fast enough to start the car, he pulled his automobile diagonally across the highway. At the time he started to move his father was standing beside the right hand door. That was the last time he saw him until he went back and found him lying in the highway. The trolley car passed the point where he had originally stopped his automobile just as he got the automobile moving and it was about its length beyond this point. He could not tell how long a time elapsed between the time when the trolley first came in sight, and when it passed the point where his automobile was parked originally; he "barely had time to get the car moving." The trolley car was travelling about twenty-five miles an hour. He did not notice any change in its speed at any time after he first saw it. He did not hear any gong or whistle from it. He did not know whether his automobile was on the car tracks when he first brought it to a stop. When he went back and found his father lying in the road, his feet were toward the tracks, his body was almost in the middle of the highway; he was groaning and unconscious and never regained consciousness, and died before reaching the hospital in Manchester. The plaintiff further testified that near the place where the accident occurred he noticed a farm house a little ahead on the right, and a gas station beyond, northerly, on the other side of the street; that he saw no other buildings near the place of the accident; that when...
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