McBride v. Middlesex & Boston St. Ry. Co.

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: FIELD
• Citation: McBride v. Middlesex & Boston St. Ry. Co., 276 Mass. 29, 176 N.E. 185 (Mass. 1931)
• Decision Date: 01 June 1931
• Parties: McBRIDE v. MIDDLESEX & BOSTON ST. RY. CO.

276 Mass. 29

176 N.E. 185

McBRIDE

v.MIDDLESEX & BOSTON ST. RY. CO.

Supreme Judicial Court of Massachusetts, Middlesex.

June 1, 1931.

Exceptions from Superior Court, Middlesex County; A. E. Pinanski, Judge.

Action by Domenic McBride against the Middlesex & Boston Street Railway Company. Verdict for plaintiff, and defendant brings exceptions

Exceptions overruled.

J. J. Brennan, of Somerville, for plaintiff.

P. F. Drew, of Boston, and F. B. Turner, of Waltham, for defendant.

FIELD, J.

This is an action of tort for negligence, brought in the superior court to recover damages for personal injuries received by the plaintiff, a pedestrian, as a result of his being struck by one of the defendant's electric cars. The defendant's motion for a directed verdict was denied, subject to its exception, and there was a verdict for the plaintiff.

There was no error in the denial of the defendant's motion for a directed verdict.

The evidence that the plaintiff was struck by one of the defendant's electric cars and injured was not contradicted. The accident occurred about 7:30 p. m. on December 24, 1926, on South street, in Waltham, which runs north and south, at or near the place at which Highland street enters it from the east. The defendant's track was on the east side of South street, outside the traveled part of the way. There was then no sidewalk on that side of the street. South street was thirty-six feet wide. There was an electric street light where Highland street entered South street, and a white-banded pole marking a car stop at the corner of these streets north of Highland street. On this corner there was a vacant lot. South of Highland street ‘there is a hill and considerable trees and shrubbery and it is a blind corner for anything coming’ from the south. The defendant's car was going south.

The evidence introduced by the plaintiff and that introduced by the defendant as to the circumstances of the accident differed widely. According to the plaintiff's own testimony, corroborated to some extent by other witnesses, it happened as follows: The plaintiff with his brother was walking on the sidewalk on the south side of Highland street toward South street, and had reached a point about fifteen feet from the nearer rail of the track when he saw the car approaching from his right about one hundred and twenty-five to one hundred and fifty feet distant. He walked forward at ‘an ordinary walk, two or three miles an hour,’ and as he ‘was about to go across the tracks * * * saw an automobile about two hundred feet away on * * * [his] left coming from’ the south. As he ‘was about to step off the track on to the street, this automobile * * * seemed to increase its speed and turn in towards the railroad quickly, and, * * * [he] stopped’ and was struck by the car and injured. The ‘automobile headed right toward the electric car as if it was going to run right into it.’ He ‘thought’ that the car ‘was coming at an ordinary rate of speed’ and that the automobile was ‘going’ probably 35 miles an hour. He would have had ‘plenty of time’ to get out of the way of the car if he ‘hadn't been obstructed by the automobile.’ He ‘could have been on the other side of the street before the car came.’ The street light was lighted and the car was lighted up when the plaintiff saw it. He did not ‘look for the car again’ after he first saw it, though he ‘had plenty of chance.’ He was ‘listening because * * * [he] knew the car was coming,’ but he ‘did not hear it.’ He did not ‘hear a gong ring.’ If, as he approached the first rail of the track, he had ‘looked and seen that the car was getting close’ to him he ‘could have stopped and let the car pass by.’ It was a ‘bad night’-‘raining, sleeting, misty.’ There ‘was no other traffic on the street except * * * [the] automobile and the electric car.’

The plaintiff's brother testified that he was walking with the plaintiff and was struck by the car. He saw the automobile coming from the south and another coming from behind the electric car, and these ‘automobiles passed’ as the witness and the plaintiff ‘were about to proceed to cross South Street.’ He saw the car coming ‘about one hundred twenty-five feet away,’ and ‘was watching the electric car all the time; it was still proceeding toward’ him. The testimony as to the place where the car stopped after striking the plaintiff varied from fifty feet to one hundred and twenty feet from Highland street and the testimony as to the place where the plaintiff was found varied from ‘forty or fifty feet’ to ninety feet from Highland street. A witness for the plaintiff testified that he ‘noticed blood on the ground starting about ten or fifteen feet from Highland Street and ending about sixty or seventy feet from the corner.’ The defendant's motorman testified that on ‘a night such as that the headlight on the car would show about eight or ten feet’ and that he ‘did not see the men until * * * [he] was within six or seven feet of them.’ He saw the automobile coming from the south. There was evidence from which it could have been found that the car had stopped at Highland street and had started up slowly and was proceeding at a speed of about ten miles an hour, that the motorman saw the plaintiff and that the car struck the plaintiff after it had passed Highland Street.

We cannot say there was no evidence that the defendant was negligent. According to the testimony of the plaintiff and his brother, the plaintiff was a traveler on a public way. As such he had a right to cross the defendant's track where he was struck. Mullen v. Boston Elevated Railway, 209 Mass. 79, 80, 95 N. E. 391;Crowell v. Boston Elevated Railway, 234 Mass. 393, 396, 125 N. E. 607. ‘In the concurrent use of the street’ by cars and pedestrians, ‘the defendant was bound to take proper precautions to avoid injury to travelers.’ Lucarelli v. Boston Elevated...