Hayes v. Boston Elevated Ry. Co.

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: PIERCE
• Citation: Hayes v. Boston Elevated Ry. Co., 269 Mass. 448, 169 N.E. 483 (Mass. 1929)
• Decision Date: 31 December 1929
• Parties: HAYES v. BOSTON ELEVATED RY. CO.

269 Mass. 448

169 N.E. 483

HAYES

v.BOSTON ELEVATED RY. CO.

Supreme Judicial Court of Massachusetts, Middlesex.

Dec. 31, 1929.

Exceptions from Superior Court, Middlesex County; Franklin T. Hammond, Judge.

Action by Frederick K. Hayes against the Boston Elevated Railway Company. Verdict for plaintiff, and defendant excepts. Exceptions overruled.

C. W. Dealtry, of Boston, for plaintiff.

A. F. Bickford, of Boston, for defendant.

PIERCE, J.

This is an action of tort in which the plaintiff seeks to recover damages for injuries received by him on March 2, 1926, as a result of being rolled and crushed between an outbound car of the defendant and one inbound on Mt. Auburn street, Watertown, near the corner of Arlington street. The jury viewed the scene of the accident. At the close of the evidence the defendant moved, and the judge refused subject to the defendant's exception, to direct a verdict for the defendant. The jury found for the plaintiff. At the argument on the bill of exceptions it was conceded by the defendant that the evidence warranted a finding by the jury ‘that the motorman of the outbound car was negligent.’ The due care and contributory negligence of the plaintiff are the only questions now at issue.

The facts pertinent to these issues are as follows: The defendant maintains two lines of tracks on Mt. Auburn street which run westerly from Harvard Square, Cambridge, toward Watertown, and Arlington street crosses Mt. Auburn street from north to south. At the time of the accident a white pole stood on the northerly side of Mt. Auburn street one hundred twenty feet west from the intersection of the northerly curb of Mt. Auburn street and the westerly curb of Arlington street. There was a second white pole on the southwesterly corner of Arlington and Mt. Auburn streets. The length of each car involved was forty-eight feet over all, and with a trailer it was ninety-seven feet. The distance from the front of the car to the middle of the trailer door was about seventy-three feet. The rails were standard four feet eight and one-half inches gauge, with a space between of five feet. The cars overhang twenty-four and one-half inches, giving a clearance of eleven inches between cars passing on a straight track and less where there was a curve. From Arlington street to Mt. Auburn bridge in the direction of Harvard Square is two thousand two hundred feet; the street is practically straight and it is possible for one with good eyesight to see from Arlington street to Mt. Auburn bridge. The plaintiff testified that he knew of and relied upon certain rules of the Boston Elevated Railway Company, one of which was that ‘A car should not pass another car while it was stopped faster than a walk,’ and without objection introduced in evidence the following rules of the defendant company: ‘1. (h) Employment with the Company binds the employee to comply with the rules and regulations, and ignorance thereof, will not be accepted as an excuse for negligence or omission of duty.’ ‘96. (a) Passing standing cars. No Street Railway car...