Horsman v. Brockton & P. St. Ry. Co.
| Decision Date | 17 May 1910 |
| Citation | 91 N.E. 897,205 Mass. 519 |
| Parties | HORSMAN DAVIS v. BROCKTON & P. ST. RY. CO. DAVIS v. SAME. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
James H. Vahey and John P. Vahey (Philip Mansfield of counsel), for plaintiffs.
Henry F. Hurlburt, Jas. T. Connolly, and Damon E. Hall, for defendant.
In the first case the plaintiff sues for personal injuries caused by a collision of the defendant's car with the team which he was driving, while the second action is brought by the owner for damages to his horse and wagon. At the close of the evidence verdicts for the defendant having been ordered because the presiding judge was of opinion as matter of law 'that it appeared that at the time of the accident the plaintiff was not in the exercise or due care,' the question for decision is whether the ruling was erroneous. It is doubtless true, as the defendant strongly urges, that since the elimination of horse cars and the substitution of electricity, passengers desire rapid transportation, and for their accommodation a heavier and more expensive equipment has been provided, with increased speed. But this demand, even when properly recognized within reasonable limits, does not relieve the carrier from compliance with the law of the road, subject only to the modifications often pointed out, that the path of the car is fixed, while travelers, either on foot or in vehicles, may use the entire way so far as it has been fitted and opened for public travel. Scannell v. Boston Elevated Ry., 176 Mass. 170, 173, 57 N.E. 341; Wright v. Boston & Nothern St. Ry., 203 Mass. 569, 89 N.E. 1073. If the general rule, that where a highway crosses the tracks of a steam railroad at grade and when such conduct is necessary for his safety, a traveler who neglects to take the precaution either to look or listen for approaching trains before crossing, but passes on and is injured, cannot recover, because he has failed to act with ordinary prudence, this rule of conduct, which has become of law, has not been applied in favor of street railways in their use of the public ways. Hennessey v. Taylor, 189 Mass. 583, 76 N.E. 224, 3 L. R. A. (N. S.) 345; Scannell v. Boston Elevated Ry., 176 Mass. 170, 173, 57 N.E. 341; O'Brien v. Lexington & Northern St. Ry., 205 Mass. 182, 91 N.E. 204. If adopted, it would not only unduly delay traffic on the principal streets of cities and towns, which generally are selected for a franchise by the company, but render the streets extremely dangerous for the accommodation of the general public, for whose use they were primarily designed. Com. v. N.Y. Central & Hudson River R. R., 202 Mass. 394, 398, 88 N.E. 764, 23 L. R. A. (N. S.) 350. If companies operating interurban lines running over highways, which for long distances are not subjected to much public travel, should have the privilege of an exclusive and paramount right of way analogous to that conferred upon steam railroads, it is for the Legislature to grant the right, and to define the conditions under which it shall be exercised. The defendant, in the management of the car at the time and place of the accident, was required so to regulate its speed, and, if necessary, to sound the gong, that travelers using due car while passing upon the track from intersecting driveways, or streets, should not be imperiled by collisions. Driscoll v. West End St. Ry., 159 Mass. 142, 34 N.E. 171; Scannell v. Boston Elevated R. R., 176 Mass. 170, 173, 57 N.E. 341; Halloran v. Worcester Consolidated St. Ry., 192 Mass. 104, 78 N.E. 381; Fallon v. Boston Elevated Ry., 201 Mass. 179, 87 N.E. 480.
The plaintiff was passing down the driveway to turn into the street, when the team as it reached the track was struck by a car coming from the south. For a distance of about 85 feet above the track, the driveway on the south side was lined with trees and shrubbery in full foliage, obstructing the view either of the track, or of cars coming from that direction. But, before reaching this point, at least 300 feet of the track extending southerly from the intersection of the driveway could be clearly seen. The plaintiff, who was familiar with the vicinity, testified that at this point he leaned forward and looked down the track, but, not seeing a car, he sat back, and drove on at moderate speed, listening meanwhile for vehicles whose approach might require him to change his course. If the jury believed this evidence, they could have found that a failure again to look, where in passing he knew any further observation would have been effectually prevented...
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