Marturano v. Eastern Massachusetts St. Ry. Co.
| Decision Date | 12 June 1940 |
| Parties | MARTURANO v. EASTERN MASSACHUSETTS ST. RY. CO. RYAN v. SAME. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Essex County; Williams, Judge.
Actions by John B. Marturano, administrator of the estate of Ellen Marturano, deceased, and by Donald M. Ryan, against the Eastern Massachusetts Street Railway Company, for wrongful death and for personal injuries, respectively, resulting from collision between automobile and street car. On plaintiffs' exceptions after allowance of defendant's motion for entry of verdict for defendant.
Exceptions sustained.
R. L. Sisk, of Lynn, for plaintiffs Marturano.
John J. Foley, of Lynn, for plaintiff Ryan.
S. Parsons, of Lynn, for defendant.
On December 15, 1935, at about nine o'clock in the evening an automobile driven by the plaintiff Ryan was in collision on Highland Avenue, Salem, with a street car of the defendant. Ryan was injured, and his companion, Ellen Marturano, was killed. Her administrator sues for death, a count for conscious suffering having been waived. Ryan's case is for personal injuries. The cases were tried before a jury upon the reports of an auditor and other evidence. At the conclusion of the evidence, the trial judge, subject to the plaintiff's exception, allowed the defendant's motion for a directed verdict in the Ryan case, and submitted the death case to the jury which returned a verdict for the plaintiff. Thereafter the judge allowed the defendant's motion for entry of verdict for the defendant in the death case under leave reserved (G.L. (Ter.Ed.) c. 231, § 120), and the plaintiff excepted. These exceptions present the only questions for decision.
Barcellona Avenue, an unlighted private way and ‘practically a rought narrow lane rarely used,’ leads to the right from Highland Avenue, a public way and main artery of travel, as one is proceeding from Salem toward Lynn. The double tracks of the defendant are within the limits of Highland Avenue and on the northwesterly side of the travelled portion of the way. These tracks are elevated about six inches from the roadbed and there is no travel over them in the immediate vicinity except at narrow entrances to private ways, including Barcellona Avenue, where the space between the tracks is graded to the level of the highway.
The jury could have found that on the night in question, Ryan and the deceased were driving from Lynn on Highland Avenue to Barcellona Avenue where they intended to park. It was dark and raining very hard. They passed Barcellona Avenue without observing it, whereupon Ryan continued on about seven or eight hundred feet to a filling station, turned in, stopped, looked up and down the road, saw nothing and then proceeded back toward Lynn on Highland Avenue. When he was five or ten feet from Barcellona Avenue, he turned his automobile a little to the right and stopped, with his right forward wheel eight or nine feet from the nearest rail. He testified that it was raining very hard; that he had the windows opened about an inch or two; that he looked to the right through the window in the front door and could see about six or seven hundred feet; that there was nothing coming; and that the window was ‘all wet but * * * you could see up the line.’ The lights of his automobile were on. After looking, he started at the rate of one to two miles an hour in first speed across the first rails, which were four feet eight inches apart, crossed the intervening space of five feet between the tracks, and was upon the Lynn bound track when the collision occurred. Ryan did not see the street car at any time. Although there was testimony from a civil engineer that the distance from Barcellona Avenue to the filling station was eight hundred fifty feet, and that there was an unobstructed view of one thousand feet toward Salem from that avenue, the jury could have found on other evidence that there is a sharp curve opposite the filling station and that at a point approximately nine hundred feet from Barcellona Avenue a ledge projects from the bank and cuts the view off ‘very quickly.’ Ryan testified that if he looked back toward Salem from Barcellona Avenue, he could see a brightly lighted trolley car if it was coming around the curve, ‘if it was there’; that he did not see it; that his view was about six hundred feet and that ‘you cannot see farther than the filling station because of the curve.’
From the filling station there is a substantial downgrade for about three or four hundred feet, and then the grade rises and is somewhat sharp to Barcellona Avenue and beyond. The jury could have found that the street car was proceeding downgrade from the filling station at a rate of speed of from thirty-five to forty miles an hour; that before the collision it did not slow down; and that, after the collision, the automobile was pushed up the tracks about one hundred feet. The street car had a ‘golden glow’ lamp which threw a light ahead from two to three hundred feet. Its headlights shed light on either side of the car from thirty to forty feet and would show ahead at least three hundred feet. The motorman testified that he did not see the automobile until it got in front of him when he was probably twenty-five feet from it; that it was then upon the Salem bound tracks; that he did not know where it was before it turned; and that when he first saw it he applied sand, put on his emergency brakes, and shut off his power.
We are of opinion that it was for the jury to determine whether the motorman was negligent. The tracks were within the limits of the public highway, and, although Barcellona Avenue was a private way, the fact that travellers might turn into it could not be disregarded by the motorman. Mahoney v. Boston Elevated Railway Co., 271 Mass. 274, 278, 171 N.E. 662. In the operation of the car he did not have an exclusive right of way. He and the occupants of the automobile had the reciprocal rights and duties of travellers upon a public highway, subject only to the limitations that there should be no unreasonable interference with the progress of the car which, from the nature of things, could move only upon its rails. The motorman might anticipate that there would be no unreasonable obstruction of his narrow pathway, but he had no right to expect that it would be wholly unimpeded. Jeddrey v. Boston & Northern Street Railway Co., 198 Mass. 232, 234, 84 N.E. 316;Callahan v. Boston Elevated Railway Co., 205 Mass. 422, 423, 91 N.E. 388,18 Ann.Cas. 510;Sellon v. Boston Elevated Railway Co., 208 Mass. 507, 509, 94 N.E. 684;Farris v. Boston Elevated Railway Co., 210 Mass. 585, 587, 96 N.E. 1098. Upon the permissible findings as to the range of lights of the street car, both in the direction in which it was proceeding and to its sides, the rate of speed at which the automobile was travelling and its progress across the tracks, the rate of the unchecked speed of the car on the downgrade, and the conditions as to darkness...
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