Kerr v. Boston Elevated Ry. Co.

• Decision Date: 21 June 1905
• Parties: KERR v. BOSTON ELEVATED RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

188 Mass. 434

74 N.E. 669

KERR v. BOSTON ELEVATED RY. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

June 21, 1905

COUNSEL

William B. Sprout and William

R. Bigelow, for plaintiff.

R. A Sears, James F. Sweeney, and A. A. Capotosto, for defendant.

OPINION

HAMMOND J.

The plaintiff, an experienced bicyclist, while riding in a public macadamized street in which were located double tracks of the defendant, came into collision with one of the defendant's cars going in the same direction. The accident occurred about 8 p. m. on October 19, 1901. The plaintiff, for some minutes before, had been riding so near to the outer rail of the track as to be in the way of any car passing upon that track, and he so continued up to the time of the accident. The distance from this outer rail to the curbstone was about 15 feet, and on cross-examination the plaintiff testified that there was 'no particular necessity for hugging the railroad tracks so closely with his machine,' but in explaining his reason for being there said that the rest of the street had been muddy, and 'hadn't got smoothed down.' There was the usual conflict of testimony as to the cause of the collision. The defendant's theory was that at the time of the accident, the plaintiff was somewhat under the influence of intoxicating liquor; that he was racing with the car; that the fork of the bicycle, which had been broken before and repaired, gave way, with the result that the plaintiff was thrown against the side of the car and there was testimony justifying the conclusion that this was the correct theory. The plaintiff's theory was entirely different. He testified that while he was going along the street 'the first thing that attracted his attention he heard a noise, and the next thing he knew he was struck. He did not hear any bell. It was such a noise as is made by the wheels of a car. He was riding a wheel with low handle bars, and was bent over pretty well, and going straight ahead, * * * and not turning in either direction. After he heard the noise he was struck on the left hip and side and thrown unconscious in the road.' Upon cross-examination: 'He could not say positively whether or not any cars had passed him from the time when he crossed the bridge until he was struck. He imagined there was. * * * He was not racing with the car. * * * He did not have time to get out of the way. * * * His wheel was within a foot or a little over from the outer rail. * * * He had a clear road ahead of him. He did not at any time ride alongside of the car which struck him.' One witness called by the plaintiff testified that she saw the car 'come up behind the plaintiff, and strike him, and throw him off his wheel into the street'; that 'the bell of the car was not rung'; and that the 'car did not stop, but went right on towards, Everett.' Of course, if the theory of the defendant is correct, the plaintiff has no case. But, if the evidence presented by the...