Mahoney v. Boston Elevated Ry. Co.

• Decision Date: 29 May 1930
• Citation: 271 Mass. 274,171 N.E. 662
• Parties: MAHONEY v. BOSTON ELEVATED RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

271 Mass. 274

171 N.E. 662

MAHONEY

v.BOSTON ELEVATED RY. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 29, 1930.

Exceptions from Superior Court, Suffolk County; Frederick J. MacLeod, Judge.

Action by Peter Mahoney against the Boston Elevated Railway Company. Verdict for plaintiff, and defendant brings exceptions.

Exceptions sustained.

N. Fink, of Boston, for plaintiff.

E. A. McLaughlin, Jr., of Boston, for defendant.

WAIT, J.

The plaintiff was injured at or near the intersection of Hyde Park Avenue, in Boston, and Wyvern Street, an unaccepted way open to and used by the public, in a collision between the sedan which he was driving and an electric street car of the defendant. There was no error in refusing to direct a verdict for the defendant. There was evidence which, taken most strongly for the plaintiff, would support findings that the plaintiff, knowing that the car was approaching rapidly upon the inbound track but justifiably believing that he had time to cross before it and that the motorman to avoid a collision would slacken its speed as the carneared the intersection of the ways, turned from a position near the outbound track to his left and drove across the tracks in order to enter Wyvern Street; while the motorman, although there was nothing to obstruct his view of the sedan, which was seen when three hundred feet away by a passenger in the car to be turning as if to drive into Wyvern Street, allowed his car to keep on along a down grade at thirty-five miles per hour, and did not check its speed until too late to prevent the collision. The evidence relating to the conduct of the plaintiff and to the exact place of collision with respect to the intersection of the ways was contradictory, so that other findings of fact were possible and justifiable. The trial judge, however, for the purpose of ruling on the motion to direct a verdict for the defendant was bound to accept as true the evidence for the plaintiff in its most favorable aspect. Shea v. American Hide & Leather Co., 221 Mass. 282, 109 N. E. 158;Margeson v. Town Taxi, Inc. (Mass.) 165 N. E. 20, and could not grant the motion unless there was evidence, binding upon the plaintiff, which, as matter of law, established either lack of due care of the plaintiff or the absence of negligence of the defendant contributing to the accident. No such controlling evidence appeared. On the contrary the findings first stated would justify a further finding of negligence by the motorman, and would negative lack of due care of the plaintiff.

The defendant does not press its exceptions to the rulings on evidence; but contends that its exceptions to the refusal of the trial judge to rule as requested and to portions of his charge should be sustained. We find no reversible error in the refusal to give the desired requests. The defendant was not entitled to have the judge charge with reference to selected facts, Ferris v. Ray Taxi Service Co., 259 Mass. 401, 156 N. E. 538;nor to direct findings upon contradictory evidence, Neelon v. Hirsh & Renner, Inc., 255 Mass. 285, 151 N. E. 302;Barrett v. Checker Taxi Co., 263 Mass. 252, 255, 160 N. E. 792; nor do we know of any law that establishes a different measure of care for a turn into an unaccepted way from that applicable to a turn into an accepted way.

The exceptions to the charge present more troublesome questions. The charge was very long, apparently without necessity in view of the simple issues of law and of fact to be discussed. It was not clear cut; nor was it wholly consistent. A juror would be likely to err by remembering a partial statement and neglecting a somewhat distant qualification; or by fixing in mind one qualifying word and failing to note another which had a different connotation. The defendant contends that there was error in the instructions given with regard to the presumption of due care of the plaintiff created by G. L. c. 231, § 85; to the law respecting the right of way laid down by G. L. c. 89, § 8; and in omitting reference to the requirements of G. L. c. 90, § 14, that the operator of a motor vehicle on any highway approaching a crossing of ways shall slow down and keep to the right of the intersection of the centers of both ways before turning to the left. The bill of exceptions does not show that any request for instructions was made with regard to G. L. c. 90, § 14, or to G. L. c. 231, § 85, before the beginning of the charge. Accordingly the defendant...