Hayes v. Boston Elevated Railway Co.

• Decision Date: 16 May 1916
• Citation: 224 Mass. 303
• Parties: JOANNA M. HAYES, administratrix, v. BOSTON ELEVATED RAILWAY COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

224 Mass. 303

JOANNA M. HAYES, administratrix, v. BOSTON ELEVATED RAILWAY COMPANY.

Supreme Judicial Court of Massachusetts, Suffolk.

May 16, 1916

March 20 1916.

Present: RUGG, C.

J., BRALEY, DE COURCY, PIERCE, & CARROLL, JJ.

Negligence, Street railway, Causing death, Use of highway. Practice, Civil Judge's charge: misleading illustration.

Where a man in the evening on leaving a sidewalk to cross a street fifty feet wide with two car tracks in the middle of it was seen to be looking in the direction of a plainly visible street railway car approaching on the farther track from two hundred and fifty to three hundred feet away and to be walking slowly with a hand in his pocket and his head down and was not seen to look in the direction of the car while crossing the street, and when he was on the nearer track and the car approaching on the farther track was distant somewhat more than thirty feet he was seen to take a step or two on the farther track where he was struck by the car and was knocked down and dragged about twenty-seven feet, in an action under St. 1906, c. 463, Part I, Section 63, as amended by St.

1907 c. 392 Section 1, for causing his death, it was held, that there was no evidence that the decedent at the time of the injury that caused his death was actively in the exercise of due care as required by the statute, and judgment was ordered for the defendant. Where, at the trial of an action against a street railway corporation under

St. 1906, c.

463, Part I Section 63, as amended by St. 1907, c. 392,

Section 1, for negligently causing the death of a traveller on the highway, the presiding judge in his charge described to the jury the method of arriving at the penalty to be imposed on a defendant who was found guilty upon an indictment for manslaughter, it was said, that it was not necessary to decide whether the use of this illustration by the judge was as matter of law so prejudicial to a fair trial of the issues as to require a setting aside of the verdict and the granting of a new trial; because in the present case judgment was ordered for the defendant on another ground and because it was not reasonable to expect that a like illustration would be used in other cases.

H. S. MacPherson, for the defendant. C. W. Rowley, for the plaintiff.

PIERCE, J. This is an action of tort for the death of the plaintiff's intestate, not a passenger, alleged to have been caused by the negligence of the defendant. In order to recover, there must be affirmative proof that the decedent was actually looking out for his personal safety at the time he was injured, and so was in the exercise of due care within the meaning of these words in St. 1906, c. 463, Part I, Section 63, as amended by St. 1907, c. 392, Section 1. McCue v Boston Elevated Railway, 221 Mass. 432 . Gafney v. Bay State Street Railway, 221 Mass. 457 . Raymond v. Worcester Consolidated Street Railway, 222 Mass. 396 .

Upon the issue of the decedent's due care, the direct and inferential evidence warranted a finding by the jury of these facts: The accident happened on Broadway, South Boston, at or near the easterly crossing of A Street...