Keith v. Worcester & B.V. St. Ry. Co.

• Decision Date: 27 November 1907
• Citation: 82 N.E. 680,196 Mass. 478
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: KEITH v. WORCESTER & B. V. ST. RY. CO. SAME v. INHABITANTS OF MILLBURY.

196 Mass. 478

82 N.E. 680

KEITH

v.WORCESTER & B. V. ST. RY. CO.

SAME

v.INHABITANTS OF MILLBURY.

Supreme Judicial Court of Massachusetts, Worcester.

Nov. 27, 1907.

Exceptions from Superior Court, Worcester County; William Cushing Wait, Judge.

Two actions by E. E. Keith, revived after her death in the name of Collins A. Keith, her administrator, against the Worcester & Blackstone Valley Street Railway Company and against the inhabitants of Millbury. A verdict was rendered in favor of plaintiff, and defendants bring exceptions. Overruled.

The actions were for injuries to the original plaintiff in her lifetime, sustained by her in falling over certain rails left in the street by the railroad company, as plaintiff was hurrying from the store to take a street car.

John Alden Thayer and Charles B. Perry, for plaintiff.

E. H. Vaughan, Thomas H. Sullivan, and Jay Clark, Jr., for defendants.

RUGG, J.

The evidence of due care on the part of the plaintiff's intestate is inconsiderable, but not so slight as to warrant the court in pronouncing it insufficient as matter of law. Although the accident occurred in daylight and the obstruction could have been seen, if the traveler had looked, such circumstances are not necessarily decisive. Fuller v. Hyde Park, 162 Mass. 51, 37 N. E. 782. Her husband had run out of a store in the effort to stop an electric car, which both, together with a companion, desired to board, and were hastening to reach. These occurrences may have diverted her attention from the surface of the street. The obstructions were temporary in character and not a part of the permanent constructions within the street, as in Raymond v. Lowell, 6 Cush. 524,53 Am. Dec. 57, and they were not such as one ordinarily encounters in traveling upon a public way. Woods v. Boston, 121 Mass. 337;Flynn v. Watertown, 173 Mass. 108, 53 N. E. 147;Slee v. Lawrence, 162 Mass. 405, 38 N. E. 708;Lamb v. Worcester, 177 Mass. 82, 58 N. E. 474. if she was going from the sidewalk to the crosswalk, there was reason for her to expect an unobstructed pathway, while if she was about to step upon that part of the street wrought and used particularly for carriages, this fact does not preclude recovery, as she had a right to travel anywhere upon the street. Pedestrians are not confined in their rights to specially prepared crosswalks. While sometimes failure to see and avoid a danger in the street may occur under such circumstances as inevitably to indicate a failure to exercise reasonable prudence to protect one's self from peril (Gilman v. Deerfield, 15 Gray, 577;Wilson v. Charlestown, 8 Allen, 137, 85 Am. Dec. 693;Raymond v. Lowell, 6 Cush. 524,53 Am. Dec. 57) ordinarily there are present such diverting incidents as to make it a question of fact.

The defendant asked the court to rule that if the person injured ‘had defective eyesight, she should take greater care in walking the street than one of good sight, and if she failed to use this greater degree of care the verdict must be for the defendant.’ This request was properly refused, for the reason that it directed a verdict upon a single phase of the testimony, which was not necessarily decisive. In this respect the prayer differs vitally from the one which Winn v. Lowell, 1 Allen, 177, held should have been given. We see no reason for modifying the decision in Winn v. Lowell, nor is it inconsistent with subsequent cases. The standard of care established by the law is what the ordinarily prudent and cautious person in the full possession and exercise of his faculties would do to protect himself under given conditions. There is no higher or different...