Lambert v. Eastern Massachusetts St. Ry. Co.

• Citation: 240 Mass. 495,134 N.E. 340
• Parties: LAMBERT v. EASTERN MASSACHUSETTS ST. RY. CO. (two cases).
• Decision Date: 02 March 1922
• Court: United States State Supreme Judicial Court of Massachusetts

240 Mass. 495

134 N.E. 340

LAMBERT

v.EASTERN MASSACHUSETTS ST. RY. CO. (two cases).

Supreme Judicial Court of Massachusetts, Middlesex.

March 2, 1922.

Exceptions from Superior Court, Middlesex County; E. B. Bishop, Judge.

Two actions by Louisa M. Lambert and Clarence E. Lambert against the Eastern Massachusetts Street Railway Company for injuries to the female plaintiff, damages to the other plaintiff's automobile, and medical and nursing expenses incurred in consequence of the personal injuries. Verdict dor defendant in each case, and plaintiff brings exceptions. Exceptions sustained.

Plaintiff's requested instructions: (1) That the mere skidding of the automobile was not an occurrence of such uncommon or unusual character that unexplained the jury could say it furnished evidence of plaintiff's negligence; (2) that there was no evidence of contributory negligence on the part of Clarence E. Lambert; (3) that there was no evidence of contributory negligence on the part of Louisa M. Lambert; (4) that there was no evidence that the speed of the automobile before its skidding was such as to establish negligence on the part of Clarence E. Lambert; (5) that the burden of proof on the issue of contributory negligence was on defendant; (6) that the liability of the automobile to be in dangerous proximity to the track and stalled or incapable of moving under its own power was a matter of common knowledge. The court gave the fifth request, and in lieu of the first charged that the mere skidding of the automobile unexplained was not necessarily evidence of negligence.Fred L. Norton, of Boston, for plaintiffs.

E. P. Saltonstall, of Boston, for defendant.

CROSBY, J.

These are two actions of tort: The first, to recover for personal injuries received by the plaintiff on July 11, 1919, in consequence of being struck by one of the defendant's cars after the automobile in which she was riding had upset upon the defendant's car tracks; and the second, by her husband, who was operating the automobile at the time of the accident, to recover for medical and nursing expenses incurred by him in the treatment of his wife on account of the injuries sustained by her, and for damages to his automobile caused by being struck by the car.

The accident occurred on Osgood street, a public way in North Andover. The street runs in an easterly and westerly direction, and at the place of the accident had a macadam or tarvia surface on each side of which for a few feet was loose gravel. The defendant maintained a single track on the extreme northerly side of the street beyond the edge of the tarvia surface. On the day of the accident the plaintiffs were traveling on the street in an easterly direction in an automobile driven by Mr. Lambert, his wife sitting on the seat beside him; when they reached a point nearly opposite a lane described in the record the automobile suddenly skidded to the left, partly across the street railway track, and tipped over; while in that position a car of the defendant traveling in a westerly direction struck the automobile and Mrs. Lambert.

At the close of the evidence the plaintiffs requested the presiding judge to give six instructions. The fifth was given in substance, and the second and sixth are waived, thus leaving for consideration the first, third and fourth.

The first request was that--

‘The mere skidding of the car was not an occurrence of such uncommon or unusual character that unexplained the jury could say it furnished evidence of the plaintiff's negligence.’

The court refused so to instruct the jury, but did instruct them that--

‘The mere skidding of his...