Harter v. Boston Elevated Ry. Co.

• Citation: 259 Mass. 433,156 N.E. 543
• Parties: HARTER v. BOSTON ELEVATED RY. CO. LEWIS v. SAME.
• Decision Date: 20 May 1927
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

259 Mass. 433

156 N.E. 543

HARTER

v.BOSTON ELEVATED RY. CO.

LEWIS

v.SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

May 20, 1927.

Exceptions from Superior Court, Suffolk County; A. R. Weed, Judge.

Separate actions of tort by Rebecca Harter and by Mary Lewis against the Boston Elevated Railway Company to recover for personal injuries when the automobile in which they were passengers collided with defendant's street car. Verdicts for plaintiffs, and defendant excepts to refusal to requested rulings and motion for directed verdict. Exceptions overruled in each case.

1. Street railroads k117(9)-Motorman's negligence in failing to sound gong in passing standing car and in not applying brakes held for jury.

In action for personal injuries to passengers in automobile, which turned in behind standing out-bound street car and was struck by inbound street car at street crossing, evidence of negligence of motorman in not observing rules of defendant to sound gong in passing a standing car, in passing it at a speed faster than a walk and not applying brakes sufficiently to bring the car under control, held for jury.

2. Street railroads k117(24)-Contributory negligence of passengers in automobile, colliding with street car passing standing street car, held for jury.

In action for personal injuries to passengers of automobile, which turned in behind standing street car on out-bound track and was struck by street car on in-bound track, where neither passenger did anything nor spoke to the automobile driver, because not a second elapsed between time of turning and collision, it could not be held as matter of law that their conduct was not that of reasonable and prudent persons, and that they were guilty of contributory negligence.

S. L. Solomont, of Boston, for plaintiffs.

E. A. McLaughlin, Jr., of Boston, for defendant.

PIERCE, J.

These are two of four actions of tort which were tried to a jury. After a verdict for the plaintiff in each case, the cases come before this court on exceptions taken by the defendant to a refusal to grant its motion for a directed verdict, and to the refusal of the trial judge to give certain requested rulings.

[1] All the material evidence bearing upon the issues is reported in the bill of exceptions. In substance, it appears therefrom that the plaintiffs, Rebecca Harter and Mary Lewis, on July 7, 1923, were injured in a collision with a street car of the defendant while they were guests in an automobile owned and driven by one Patrick J. Shea. There were four people in all riding in a Ford touring automobile. Mary Lewis was on the front seat at the right of the driver and Rebecca Harter was on the back seat on the right-hand side, with her daughter, Leverne Harter, at her left. The automobile party was returning from Readville, and they were trailing an out-bound car going to City Point on Dorchester street near the corner of Fifth street, when the automobile was struck by a car of the defendant, inward bound to Dudley street. The automobile was driven in the paved way at the right of the out-bound street car, which stopped at Old Harbor street while people were getting off. The automobile was driven slowly, at the rate of about 2 miles an hour, until it was within 8 or 10 feet from the standing out-bound car; then, wishing to make a turn into Fifth street, Shea put out his hand, rang his horn, listened for a response, and looked in both directions-to the left, to see if any one were behind; to the right, to see if an electric car were coming. The reason he did not see the car with which he collided was that his view was obstructed by the standing car.

Shea knew and relied upon rule 96A of the rules of the defendant, which reads:

‘ Passing Standing Cars. No street railway car shall pass at a rate of speed faster than a walk another car standing on a track on the same street to receive or deliver passengers,’

-as also upon rule 119 of the defendant which reads:

‘The gong must always be sounded when starting,...