Kelley v. Wakefield & S. St. Ry. Co.

• Decision Date: 01 March 1900
• Citation: 56 N.E. 285,175 Mass. 331
• Parties: KELLEY v. WAKEFIELD & S. ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

175 Mass. 331

56 N.E. 285

KELLEY v. WAKEFIELD & S. ST. RY. CO.

Supreme Judicial Court of Massachusetts, Middlesex.

March 1, 1900

COUNSEL

F. P. Curran and A. D. Moran, for plaintiff.

S. J Elder and N. Sumner Myrick, for defendant.

OPINION

LORING J.

This was an action to recover for injuries caused by a collision between the plaintiff's wagon and an electric car of the defendant corporation as the plaintiff was driving into Main street from Richardson street, in the town of Wakefield. Apparently, Main street runs east and west, and Richardson street runs north and south. The tracks of the defendant are on the southerly side of Main street, and distant seven feet or less from the curbstone of the sidewalk on that side of the street. The accident happened about 5 minutes past 7 o'clock on the evening of November 24, 1897. The plaintiff is a grocer, having a store on Main street, and was at the time of the accident driving from the house of a customer, where he had delivered some groceries, to his store. In passing over Richardson street, in the direction of Main street, the plaintiff crossed the tracks of the Boston & Maine Railroad; and he testified that, just after he passed the flagman's house at this railroad crossing, he looked both ways to see if an electric car was coming. It is stated in the bill of exceptions that from this flagman's house to the southerly rail of the defendant's tracks in Main street is 80 feet. The plaintiff was driving an ordinary grocer's wagon, and the distance from his seat on the wagon to his horse's nose was 12 feet. There was a row of pine trees inside the street wall on Main street, running east from the corner of Richardson street; and the plaintiff testified that the view of a person seated in a wagon, as he was, would be so obstructed by them, if he were 18 feet back from the electric car track, that he could not see a car going west from the square or armory to the corner; that a person seated in such a wagon, opposite the flagman's house, could see two-thirds of the distance from the armory to the corner; and that he could not obtain a view up the track towards the armory, after he had passed the line of the trees, until he reached a point 14 feet south of the southerly rail of the defendant's track. The plaintiff's evidence tended to show that the night in question was dark, with light snow or rain; that the defendant's car came at the rate of 12 to 16 miles an hour; and that the plaintiff was driving at the rate of between 4 and 5 miles an hour. He testified that after he looked for a car at or near the flagman's house, he drove on about his business, on the right-hand side of Richardson street; that he heard no gong, and just as he got to the corner his horse turned or swerved to the left, the fender of the car tripped him, and he fell on his right side towards the car, the car striking the wagon at about the front wheel; and that he was thrown on the ground between his wagon and the car, and when he got up the car had passed him.

We are of opinion that the plaintiff's evidence showed that he was negligent, and that his negligence contributed to the accident. There is no absolute rule of law requiring a traveler to look and listen before crossing the tracks of an electric railway in a public highway. Robbins v. Railway Co., 165 Mass. 30, 42 N.E. 334. On the other...