Hennessey v. Taylor
| Decision Date | 04 December 1905 |
| Citation | 189 Mass. 583,76 N.E. 224 |
| Parties | HENNESSEY v. TAYLOR. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J. W. Cummings and E. Higginson, for plaintiff.
D. F Slade, for defendant.
At the time of the accident the parties were travelers upon the highway; the plaintiff on foot, the defendant in his automobile. Their respective rights and reciprocal duties have been often defined that although each had the right to pass and repass, neither could so negligently exercise this right as to injure the other. O'Brien v. Blue Hill Street Railway Co., 186 Mass. 446, 447, 71 N.E. 951, and cases cited. Having come into collision, the usual questions of due care on the part of the plaintiff, and negligence of the defendant are raised. Ordinarily these are issues of fact for the jury. Purtell v. Jordan, 156 Mass. 573, 31 N.E. 652. And no facts are disclosed in the present case to take it out of this general rule.
The plaintiff, desiring to become a passenger on an electric car which was about to pass on the opposite side of the street gave the usual signal. When the car stopped she started to walk across. According to her evidence she looked to see if there was any danger, but did not observe the defendant's automobile, nor hear any signal of its approach sounded. The only witness called by her, and who stood by her side before she attempted to board the car, had observed the defendant's machine at some distance, but it is not shown that this information was communicated to the plaintiff. It cannot be said that there was a balancing of probabilities by the plaintiff, with a willingness to take the risk of safely getting over before the defendant came up, as might have been the fact in Whitman v. Boston Elevated Railway Co., 181 Mass. 138, 63 N.E. 334, or where, in a spirit of apparent indifference, plaintiffs voluntarily have exposed themselves to the chance of serious injury. Kelly v. Wakefield & Stoneham Street Railway, 175 Mass. 331, 56 N.E. 285; Hurley v. West End Street Railway Co., 180 Mass. 370, 62 N.E. 263; Creamer v. West End Street Railway Co., 156 Mass. 320, 31 N.E. 391, 16 L. R. A. 490, 32 Am. St. Rep. 456; Mathes v. Lowell, Lawrence & Haverhill Street Railway Co., 177 Mass. 416, 59 N.E. 77; Donovan v. Lynn & Boston Railroad Co., 185 Mass. 533, 70 N.E. 1029; Judge v. Elkins, 183 Mass. 229, 66 N.E. 708. If she had seen the defendant's machine approaching, and decided it was sufficiently distant to enable her safely to pass, she might have been found by the jury to have exercised due care, though the accident proved that her judgment was erroneous. Coleman v. Lowell, Lawrence & Haverhill Street Railway Co., 181 Mass. 591, 64 N.E. 402.
The defendant puts much emphasis on her language that 'she did not see any automobile coming,' contending that she had seen it arrive and come to a stop before she attempted to cross. But it was for the jury to interpret her meaning, and also to determine how far any failure by her to more fully and carefully observe the amount or kind of travel in the street was indicative of such want of care as ought to bar her recovery. Wrinn v. Jones, 111 Mass. 360; Williams v. Grealy, 112 Mass. 79; Schienfeldt v Norris, 115 Mass. 17; Carland v. Young, 119 Mass. 150; Bowser v. Wellington, 126 Mass. 391; Shapliegh v. Wyman, 134 Mass. 118; Benjamin v. Holyoke Street Railway Co., 160 Mass. 3, 35 N.E. 95, 39 Am. St. Rep. 446; Murphy v. Armstrong Transfer Co., 167 Mass. 199, 45 N.E. 93; McCrohan v. Davison, 187 Mass. 466, 73 N.E. 553. There is no imperative rule of law which has been called to our attention generally requiring a pedestrian, when lawfully using the public ways, to be continuously looking of listening to ascertain if autocars are approaching, under the penalty that, upon failing to do so, if he is injured, his negligence must be conclusively presumed. See Robbins v. Springfield Street Railway Co., 165 Mass. 30, 42 N.E. 334. It has, indeed, been held that a traveler upon a highway, knowing that it is crossed by a railroad at grade, who passes onto the crossing without looking to ascertain if a train is coming, and is thereby injured, is guilty of such contributory negligence as to preclude his recovery. Butterfield v. Western Railroad Corporation, 10 Allen, 532, 87 Am. Dec. 678. The reason for this rule was stated by Mr. Justice Morton in Allyn v. Boston & Albany Railroad Co., 105 Mass. 77, to be that Outside, however, of such excepted...
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