Lawrence v. Fitchburg & L. St. Ry. Co.

• Decision Date: 29 March 1909
• Citation: 201 Mass. 489,87 N.E. 898
• Parties: LAWRENCE v. FITCHBURG & L. ST. RY. CO. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

201 Mass. 489

87 N.E. 898

LAWRENCE v. FITCHBURG & L. ST. RY. CO. (two cases).

Supreme Judicial Court of Massachusetts, Worcester.

March 29, 1909

Defendant's second, fourth, and fifth requests for rulings were as follows:

'(2) If the plaintiffs saw the car approaching at a distance of 500 feet or more, upon a dark night, and knew they were in a position where the car could not pass without colliding with the automobile, and had ample time to remove from such position of danger, but remained in the same position relying upon the expectation that the motorman would see them and stop the car before colliding with the automobile then neither plaintiff can recover for personal injuries nor for any damages connected with, or growing out of, such personal injuries.'

'(4) Upon all the evidence the plaintiff Martha H. Lawrence cannot recover.

'(5) Upon all the evidence the plaintiff Ivers P. Lawrence cannot recover for anything except the damages to the automobile.'

COUNSEL

John F. McGrath, for plaintiffs.

Chas. F. Baker and Emerson W. Baker, for defendant.

OPINION

SHELDON J.

The jury might have found upon the evidence that the automobile in which the plaintiffs were riding became stalled in close proximity to the defendant's track, that this was without any negligence on the part of either plaintiff, and that although the male plaintiff, hereinafter called the plaintiff, endeavored to start his automobile and get it away from its position of danger, and did everything in this behalf which was required by due care, he was unable to do so, and it was run into by the defendant's car and damaged. If a finding that this collision was due to negligence of the defendant's servants was warranted, then it is evident that the plaintiff could recover for the damage thus caused to his automobile; and this presents and first question to be answered.

It was a dark night; whether it was foggy or not was in dispute. The defendant's track was on the easterly side of the road, outside of the traveled part of the highway. The space between the rails was not macadamized, but was grass-grown and rough. East of the tracks, the ground was rough and there were piles of ties and rails. The plaintiff testified that he saw the defendant's car approaching his stalled automobile when it was as much as 500 feet away, and the jury, in spite of the contradictory testimony, might find that the defendant's motorman could see the automobile from as great a distance. There was evidence, although this was disputed, that the rear light on the plaintiff's automobile was burning and that the front lights shone back a long distance from the car. The plaintiff testified that the car came on very rapidly. Different witnesses put its speed at from 25 to 30 miles an hour. Mrs. Lawrence testified that its speed was not noticeably reduced until the time of the collision, although she heard the brakes put on when she stood up and waved her hand to the motorman. This evidence was contradicted; but it was for the jury to say what testimony was to be believed.

Upon these facts it cannot be said as matter of law that the conduct of the defendant's servant was free from negligence. It is true that the defendant was not bound to anticipate that any one would be driving upon the track outside of the traveled part of the road; but the jury might find that the exigencies of travel, the duty of turning out for other vehicles, might at any time bring and keep for some time a carriage or automobile dangerously near to the track. The liability of such a machine as the plaintiff's to become stalled might be found to be a matter of common knowledge. But the decisive consideration on this part of the case is that the jury might find that the motorman either did see, or, in the exercise of proper diligence ought to have seen the plaintiff's machine at a distance of some hundreds of feet, and that he ought very soon to have noticed that it was stationary and might well be stalled, and that due care required him thereupon to reduce his speed to such a rate that when he saw the full emergency, when he saw or ought to have seen Mrs. Lawrence standing up in her seat and signaling to him, he might have stopped his car and avoided any collision. This warranted a finding that the collision was due to his negligence; and it follows that the plaintiff was at least entitled to recover for the damage to his automobile, and that the first, third and sixth instructions requested could not have been given.

But somewhat different questions are raised upon the other requests for instructions.

The plaintiff and his wife both realized fully their dangerous position. They knew that cars passed the place about once in 15 minutes. They had overtaken and passed this very car about one mile back from the place of the accident. After their machine was stalled and while the plaintiff was endeavoring to crank it and...