Hough v. Boston Elevated Ry. Co.

• Decision Date: 05 January 1928
• Citation: 159 N.E. 526,262 Mass. 91
• Parties: HOUGH v. BOSTON ELEVATED RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

262 Mass. 91

159 N.E. 526

HOUGH

v.BOSTON ELEVATED RY. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 5, 1928.

Exceptions from Superior Court, Suffolk County; Philip J. O'Connell, Judge.

Action of tort by Pearl B. Hough against the Boston Elevated Railway Company to recover for personal injuries when plaintiff was struck by a street car. Verdict for plaintiff, and defendant excepts. Exceptions overruled.

E. M. Shanley and J. D. Mulloney, both of Boston, for plaintiff.

L. Powers, of Boston, for defendant.

CROSBY, J.

This is an action to recover for personal injuries received by the plaintiff when she was struck by an electric street car operated by the defendant.

The plaintiff testified in substance that St. Mary street is on the south side of Commonwealth avenue, in Boston; that she walked down the right-hand side of St. Mary street with the intention of crossing the street car tracks on Commonwealth avenue to take an outbound car; that when she reached the southeast corner of that avenue and St. Mary street she stopped to observe the traffic before stepping from the curbstone; that there was no traffic, except a street car, inbound, standing on Commonwealth avenue on the upper or westerly side of St. Mary street; that she started to cross the avenue on the extended line of the easterly sidewalk on St. Mary street, and when she crossed the first rail of the inbound track, the inbound street car was still standing on the outbound side of St. Mary street, in the same place where she had first observed it; that at that time she noticed on outbound car about two hundred feet away; that there was another lady also crossing the street about three or four feet ahead of her, and when the plaintiff was about to cross the second rail of the inbound track she was struck by the inbound car; that as she crossed the street she was walking along moderately fast ‘just about normal.’ She further testified as follows:

‘* * * In crossing I was observing the track, the car; the position of the car before I stepped on the rail and watching to see this woman going across ahead of me and she was across the first rail about the time that I was stepping on to the elevation, and she crossed the second rail, I should say, about the time that I crossed the first’; ‘I was on the inbound track. I had stepped over the first rail and was about to step over the second rail when I was struck.’

The record recites that:

‘The distance from where the plaintiff testified the car had been standing to the point of the accident was thirty-four feet. The plaintiff estimated this distance to be twelve feet. The distance between the rails was four feet eight and one-half inches. The inbound car struck the plaintiff and after striking her went approximately six feet.’

There was testimony other than that of the plaintiff that the inbound car had been stopped at the westerly side of St. Mary street, while the motorman and several passengers in the car testified that the car did not stop on that side of the street.

[1] The plaintiff introduced in evidence section 73 of chapter 40 of the Revised Ordinances of 1914 of the city of Boston, in force at the time of the accident, which provides as follows:

‘No person having control of the speed of a street-railway car passing in a street shall fail to keep a vigilant watch for all teams, carriages, and persons, especially children, nor shall such person fail to strike a bell several times in quick succession on approaching any team, carriage, or person, and no person shall, after such striking of a bell, delay or hinder the passage of the car.’

The trial judge correctly instructed the jury that if the ordinance was violated it was evidence of negligence of the defendant.

[2] The plaintiff was asked on direct examination:

‘Was there a gong rung there? A. No.’

The question and answer were admitted subject to the defendant's exception. This exception presents the only question for our determination.

[3][4] It is the contention of the defendant that it was prejudicial error on the part of the trial judge to permit the plaintiff to answer the question without preliminary proof that she was ‘paying any attention for the purpose of hearing.’ The weight to be attached to the testimony of a witness respecting the question whether a bell, horn or other signal was rung or sounded depends upon the attendant circumstances. If a witness testifies that a signal was or was not given, or that he did or did not hear it, and it appears that there was no particular reason why he should or should not have heard it had it been given, such testimony is merely negative and of no value as evidence. Tully v. Fitchburg Railroad, 134 Mass. 499;Menard v. Boston & Maine...