Keating v. Boston Elevated Ry. Co.

• Decision Date: 19 June 1911
• Citation: Keating v. Boston Elevated Ry. Co., 209 Mass. 278, 95 N.E. 840 (Mass. 1911)
• Parties: KEATING v. BOSTON ELEVATED RY. CO. (two cases).
• Court: Supreme Judicial Court of Massachusetts

209 Mass. 278

95 N.E. 840

KEATING v. BOSTON ELEVATED RY. CO. (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

June 19, 1911

COUNSEL

F. R. Mullin and P. S. Spain, for plaintiffs.

F. M Ives, for defendant.

OPINION

LORING J.

The plaintiff in the first case was driving a two-horse covered wagon along Western avenue in Brighton, at about 8 o'clock p. m. in the month of January, when the right rear wheel 'caught in a cradle hold or rut about two inches deep.' His right wheels were about three feet from the curb on the right side of the street and his left wheels were within three feet of the southerly rail of the inbound track of the defendant corporation. To the left of the inbound track there was an outbound track. The plaintiff found that he was too near the curbstone to pull out to the right, so he turned his horses to the left to pull the wagon out of the hole or rut. Just before he turned them to the left he looked both ways for an approaching car or cars. He saw none coming on the inbound track but he did see on the outbound track the headlight of the car which finally ran him down, about 1,000 yards or three-quarters of a mile away. When he first turned the horses to the left they were at an angle of 45 degrees to the wagon, and they were on the inbound track. He then urged them forward, but they did not pull the wagon out of the rut. Then he rested them for a minute or so. Then he turned them still more to the left so that they made an angle of 90 degrees to the wagon, and that brought the horses across the inbound track. He then 'stood up and urged and 'chased them' forward' and 'the horses moved ahead across the outbound track, straightening the team out after them, and when the four wheels of the wagon were in the middle of the outbound track' 'he looked and saw the car 18 feet away.' He did not have time to jump, but he succeeded in pulling the horses out of the way and the car struck the right forward wheel of the wagon, throwing him to the ground. He testified that he thought four or five minutes elapsed between the time when he looked the first time and the time when he was struck, or when he looked just before he was struck. The only direct evidence as to the speed of the car showed that it was going at the rate of 14 miles an hour.

In Seele v. Boston & Northern St. Ry. Co., 187 Mass 248, 72 N.E. 971, it was held that a plaintiff was guilty of contributory negligence who drove for three-quarters of a mile alongside of the defendant's tracks after looking to see if a car was coming and then turned and drove across them without looking again. And the same result was reached in Tognazzi v. Milford & Uxbridge St. Ry., 201 Mass. 7, 86 N.E. 799, 21 L. R. A. (N. S.) 309, where the plaintiff looked to see if a car was coming. Seeing none he drove for 300 feet alongside the tracks, and then turned and drove across them without looking again. In that case there was evidence that there was a clear view of the track for 'several hundred feet.'

In our opinion the case at bar is taken out of those decisions by the fact that the plaintiff here saw the car and that the car was then 1,000 yards to three-quarters of a mile away. After seeing that the car was then at that distance away, the plaintiff concentrated his attention upon extricating his wagon from the rut in which it was stalled for a period of time which he testified was four or five minutes. The jury would be warranted in not taking his testimony as to the intervening time literally, in inferring that he originally thought that he had time to extricate the wagon from the rut and get across before the car reached him and in finding that he became so engrossed in what he was doing that without being guilty of negligence he kept on with those...