Gould v. Boston & M.R.R.
| Decision Date | 24 June 1931 |
| Citation | 176 N.E. 807,276 Mass. 114 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | GOULD v. BOSTON & M. R. R. |
OPINION TEXT STARTS HERE
Report from Superior Court, Middlesex County; Hammond, Judge.
Action by Fernald N. Gould, administratrix, against the Boston & Maine Railroad. Directed verdict for defendant. On report from the superior court.
New trial ordered.
R. B. Walsh, of Boston, for plaintiff.
M. J. Cohen, of Lowell, for defendant.
The plaintiff, as administrator of the estate of James W. Gould, brought this action to recover damages for the death of his intestate under Public Statutes of New Hampshire, 1891, c. 191, §§ 8-13, inclusive, now Public Law, of New Hampshire, 1926, c. 302, §§ 9-14, inclusive. It was alleged that the death was caused by the negligence of the defendant in the operation of one of its street cars on a trolley line between Manchester and Concord, New Hampshire. The answer was a general denial and an allegation of contributory negligence. The accident happened in the town of Hookset, New Hampshire, on November 29, 1924, at about 6 p. m.
The plaintiff and his intestate, who was the plaintiff's father, left Concord about five o'clock in the afternoon and travelled southerly by automobile, the plaintiff seated on the left operating the motor vehicle and his father on his right. As they departed from Concord it was ‘snowing moderately’; as they proceeded ‘it was snowing quite heavy.’ Soon after leaving Concord ‘they noticed a single line of street car tracks' along the westerly or right-hand side of the highway. As they came to a fork in the way, the car tracks went to the right. The plaintiff continued ‘straight ahead’ for about four miles beyond the fork in the road when the motor vehicle was brought to a stop He called to his father, ‘look out for the car’; he then drove to the left-hand side of the road and later, on leaving the automobile, came to his father ‘lying face up in the middle of the road, his feet pointing toward and being about five feet from the car tracks' ‘directly opposite the point where his father had got out of the automobile.’ The intestate died on the way to the hospital.
It appeared that, about three hundred yards north of the place of the accident, the car tracks returned to the highway on which the plaintiff was traveling and continued southerly along the westerly side of the highway but within the limits of the highway. Three or four inches of snow had fallen, which covered the electric car tracks, so that the plaintiff did not know that the electric car tracks had returned to the highway, and ‘could not see’ them. The snow had covered all traces of traffic and there was nothing to indicate to the plaintiff the limits of the highway except a gutter on the left and shrubs and a fence on the right.
The plaintiff testified that when he stopped his automobile ‘in his opinion it was so close to the inner rail that it would have been struck by the approaching electric car had he not changed its position’; that he first saw the approaching car ‘distant two hundred yards southerly’; that it was at this time his father alighted from the automobile and was standing beside the right-hand front door of the automobile and at that time he called to his father, ‘look out’; that the street car was moving at the rate of twenty-five miles an hour. The plaintiff further testified that when he started the automobile the car was fifty or sixty feet distant. On cross-examination the plaintiff testified that as his intestate stood there, the witness saw the car six hundred feet away and that it passed the witness ‘just as * * * [he] commenced to move’; that the car traveled seventy-five yards beyond the place of the accident before coming to a stop. The plaintiff also testified that there were marks over his father's right eye ‘as if he had come in contact with something.’ The engine of the automobile was running all the time, and its lights were lighted.
The motorman testified that he first saw the plaintiff's motor vehicle when he was about two hundred feet distant; that he first saw the lights on the automobile when it was one hundred and fifty or two hundred yards away; that it was about four feet from the track so that the street car could pass it; that he reduced the speed of the car; that when about fifty feet away from the automobile, he turned off the arc head light and “snapped on' a small incandescent light, by which, under the circumstances then existing, he could see ahead of him for a distance of thirty...
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Peterson v. Boston & M.R.R.
...Co., 115 Mass. 304, 307,15 Am.Rep. 106;Gannett v. Boston & Maine Railroad, 238 Mass. 125, 130 N.E. 183;Gould v. Boston & Maine Railroad, 276 Mass. 114, 176 N.E. 807;Holland v. Boston & Maine Railroad, 279 Mass. 342, 181 N.E. 217, and Murphy v. Smith, 307 Mass. 64, 29 N.E.2d 726. Various ite......
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Gould v. Boston & M.R.R.
...evidence as is here presented it was held by this court that the case should have been submitted to the jury. Gould v. Boston & Maine Railroad, 276 Mass. 114, 176 N. E. 807. Although the testimony at the last trial was not in all respects the same as that presented at the previous trial, it......
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...and have led to gong or whistle signals that might have warned the intestates in time to save their lives. See Gould v. Boston & Maine Railroad, 276 Mass. 114, 176 N. E. 807. Although in view of other warnings the intestates might not have been in position to set up lack of gong or whistle ......
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