Hess v. Boston Elevated Ry.

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: COX
• Citation: Hess v. Boston Elevated Ry., 304 Mass. 535, 24 N.E.2d 550 (Mass. 1939)
• Decision Date: 27 December 1939
• Parties: HESS v. BOSTON ELEVATED RY.

304 Mass. 535

24 N.E.2d 550

HESS

v.BOSTON ELEVATED RY.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 27, 1939.

Exceptions from Superior Court, Suffolk County; Greenhalge, Judge.

Action by Isabella R. Hess, administratrix, against Boston Elevated Railway Company. Verdict for plaintiff, and defendant brings exceptions.

Exceptions overruled.

J. T. Doherty, of Boston, for plaintiff.

C. A. McCarron, of Boston, for defendant.

COX, Justice.

The plaintiff's intestate, while a traveller on Bennington Street in Boston, was killed on May 18, 1938. Actions were brought against the defendant and one Millen to recover for his death and conscious suffering. The jury returned verdicts for both defendants on the counts for conscious suffering and for the plaintiff on the death counts. The case against Millen is not before us.

The jury could have found that the intestate, as he was crossing from the southwesterly corner of Brooks and Bennington streets diagonally in the direction of the northeasterly corner, was struck by the left front of one of the defendant's out-bound cars and thrown against the left side of a truck that was being operated in-bound by Millen. There are double car tracks of the defendant in Bennington Street, which is about thirty-six and one-half feet wide from curb to curb, runs in an easterly direction, and is straight for several hundred feet in both directions from its intersection with Brooks Street. From the southwesterly corner of Brooks Street to the first car rail it is twelve and one-half feet; between the rails it is four feet eight and one-half inches; between the tracks it is five feet, and from the outer rail of the in-bound track to the northeasterly side of Bennington Street it is nine and one-half feet. The intestate stepped from the curbing at the southwesterly corner, hesitated a few seconds, looked both ways and proceeded to walk across the street. When he started to cross there were no moving vehicles anywhere near the intersection except the street car and an automobile that was following it. When he was at the second rail of the out-bound track, he hesitated and turned his head to the right and then to the left in the direction from which the defendant's car was approaching; he remained in that position for two or three seconds before he was hit. He was seen to ‘walk across and stop in the middle of the two rails, the ‘dummy’ [the space between the two tracks] and look around; * * * he stayed * * * [there] for a few seconds.' When the intestate was at the second rail of the out-bound tracks ‘or just a little over the second rail,’ the street car was from twenty-five to fifty feet ‘back of the intersection of Brooks Street,’ and moving at the rate of twenty-five miles an hour. Brooks Street is thirty-one feet wide from curb to curb. By reference to the plan in evidence and the testimony of a witness, it could be found that when the intestate was a foot or a step from the second rail, the street car was approximately one hundred feet away. The day was bright and clear and the time was about one o'clock in the afternoon.

1. It could not have been ruled rightly as matter of law that the intestate was contributorily negligent. This was a question of fact and the burden of proof rested upon the defendant. The jury could have found that the Millen truck, moving toward town, had stopped back of the easterly line of the intersection of Bennington and Brooks streets and, in response to a signal from a police officer, who was standing at the corner, proceeded to cross the intersection, ‘straddling the nearest rail to the curb,’ without changing its course and was in the center of the intersection when the intestate, who was ‘just alongside’ the truck, was struck by the street car. To remain where the intestate did cannot be said, as matter of law, in all the circumstances to have been negligent, nor can it be so said that an emergency had been created through his fault. He was entitled to rely to a reasonable extent on the expectation that the motorman would not fail to take such reasonable precautions for his safety as the traffic conditions required. McBride v. Middlesex & Boston Street Railway, 276 Mass. 29, 33, 34, 176 N.E. 185, and cases cited; Nicholson v. Babb, Mass., 23 N.E.2d 103. See Donovan v. Mutrie, 265 Mass. 472, 476, 477, 164 N.E. 377;Hayes v. Boston Elevated Railway, 269 Mass. 448, 169 N.E. 483;Burrill v. Boston Elevated Railway, 270 Mass. 316, 318, 170 N.E. 65. This is not a case where the only conclusion permissible is that the deceased suddenly stepped from a place of safety directly in front of a moving vehicle. Nicholson v. Babb, Mass., 23 N.E.2d 103, and cases cited. It could have been found that, when the street car was more than one hundred sixty feet from the point of contact, it slowed down momentarily to ten miles an hour, or approximately fifteen feet a second, and then proceeded, travelling at the rate of twenty miles an hour. See Scherer v. Boston Elevated Railway, 238 Mass. 367, 130 N.E. 840;Callahan v. Boston Elevated Railway, 286 Mass. 223, 190 N.E. 27. What the intestate saw when he stepped from the curbing, and what judgment, if any, he may have formed as to whether in the circumstances disclosed to him it was reasonably safe to attempt to cross the street are matters which, it may be said, death has prevented us from knowing. In any event he was crossing a public way in full view of the motorman. Snow v. Boston Elevated Railway, Mass., 22 N.E.2d 4, and cases cited. Pond v. Somes, Mass., 20 N.E.2d 449.DeAngelis v. Boston Elevated Railway, Mass., 23 N.E.2d 859. There was no error in the denial of the defendant's motion for a directed verdict on the ground of contributory negligence. The question of negligence of the motorman has not been argued.

2. The plaintiff, in direct examination, was asked how many children she and the intestate had. Subject to the defendant's exception the plaintiff was permitted to answer. An action against this defendant for death resulting from negligence can be brought only under G.L.(Ter.Ed.) c. 229, § 3, which provides in part as follows: ‘If a corporation operating a railroad, street railway or electric railroad, by reason of its negligence or of the unfitness or negligence of its agents or servants while engaged in its business, causes the death of a passenger, or of a person in the exercise of due care who is not a passenger or in the employment of such corporation * * * Such corporation shall * * * be liable in damages * * * which shall be recovered in an action of tort * * * by the executor or administrator of the deceased, and distributed as provided in section one.’ Foynes v. New York Central Railroad, 276 Mass. 89, 91, 177 N.E. 119. Said section 1 provides that the damages are ‘to the use of the surviving wife or husband and children of the deceased in equal moieties, or, if there are no children, to the use of the surviving wife or husband, or, if there is no surviving wife or husband, to the use of the next of kin.’ In an action brought to establish liability under St.1907, c. 375, of a defendant for negligence in causing the death of a person where one half of the amount of recovery was to the use of the widow and one half to the use of the children of the deceased, or, if there are no children, the whole to the use of the widow, or, if there is no widow, the whole to the use of the next of kin (see now G.L.[Ter.Ed.] c. 229, § 5, as amended by St.1937, c. 406, § 3), it...