Mercier v. Union St. Ry. Co.

• Decision Date: 29 May 1918
• Citation: 230 Mass. 397,119 N.E. 764
• Parties: MERCIER v. UNION ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

230 Mass. 397

119 N.E. 764

MERCIER

v.UNION ST. RY. CO.

Supreme Judicial Court of Massachusetts, Bristol.

May 29, 1918.

Exceptions from Superior Court, Bristol County; Marcus Morton, Judge.

Action by Annie Mercier, administratrix, against the Union Street Railway Company, for personal injuries to plaintiff's intestate, who had alighted from defendant's car, and was struck by a car coming on another track from the opposite direction. Directed verdict for defendant, and plaintiff excepts. Exceptions sustained.

John W. Cummings, Chas. R. Cummings, and Jas. W. Nugent, all of Fall River, for plaintiff.

Hurlburt, Jones & Hall, of Boston, for Damon E. Hall.

RUGG, C. J.

The plaintiff's intestate alighted from a car between 11 and 12 o'clock on a dark night in a sparsely settled neighborhood in the country where the double tracks of the defendant were upon the southerly side of the highway and more than 7 feet from its wrought part. He had come as a passenger from Fall River, and the car upon which he had ridden was on its way to New Bedford. The place of the accident was at a crossing leading from the highway to a lane where were some camps. The crossing consisted of planks against the rails. For a mile both to the east and to the west were no intersecting roads, and the land on one side of the tracks was swampy and wooded. Three other passengers got off at the same place, and the car started on its way. The tracks for at least a mile on each side ran in a straight line and the grade was nearly level one way and ascending the other. The direction of the tracks was approximately east and west. The car was an open one, but the curtains in front and on its left or north side were all down, so that a passenger could not readily see out on those two sides. There was plenty of testimony tending to show that when the car stopped the conductor called out, ‘Watch the car in back!’ or words to that effect, and that there were several cars following on the same track. The narratives of the three passengers who left the car at the crossing, respecting the actions of the deceased and the circumstances which attended him, were in substance these:

One Tolley testified that the deceased, when he left the car and was on the ground, looked back at the car following on the same track, which had its searchlight on, and the car they had left started up. After that the deceased started to cross the track, but before he could get across, the car from New Bedford struck him. Up to that time there had been no signal given from that car. ‘The witness did not see any lights on it burning, and that he was looking, and that up to that time he had not seen that car coming from New Bedford. When he turned around and looked at this car, he did not see any lights on it.’ The witness was going to a camp in the opposite direction from the course pursued by the deceased. He testified on cross-examination that he did not notice any light on the car approaching. ‘He wasn't paying any attention as to whether any car was coming from New Bedford after he alighted. * * * He didn't mean to say that the ordinary headlight and the ordinary lantern were not on the front of the car that came in contact with’ the deceased. ‘When he turned around and looked at it [the car from New Bedford] the front part had passed him and he couldn't see any lights, and that he didn't see the front part of it at all; that if there was a searchlight on the car, he couldn't see it. He wouldn't say and did not mean to say that there wasn't a lantern and ordinary headlight on the front end of the car; that he did not know.’

On Gagnon testified that the deceased ‘got off the car, turning to his right, walking to the rear of the car and crossing the crossing on the other side looking towards Fall River and proceeded on, walking across the track, and then he was caught by the car coming from New Bedford’; that the car gave no signal; that the car from which they alighted passed the crossing, and that the rear platform was ‘hanging over the crossing’; that he saw the car from New Bedford because he ‘put his head out on the north side of the car’ before he alighted and ‘saw the other car coming from New Bedford, and at that time the other car had its searchlight going.’ He knew where the deceased lived and anticipated that he ‘would go out on the street and walk up toward his camp’; that after starting up the lane, he thought of the car from New Bedford and turned around and ‘tried to holler at him, but it was too late’; that he saw the deceased as he started to turn and look toward Fall River, but didn't see him again until he was on the track where he was struck.

One Howland testified that he was sitting on the front seat of the car, that after stepping off the car he glanced down the track toward New Bedford and saw the car coming and saw its headlight; that he saw the deceased getting off the car and he ‘proceededto go around the rear of the car’; that ‘at first the witness did not think that Mr. Mercier [the deceased] was going to cross, and when he saw Mr. Mercier was going around the rear, the witness shouted at him not to cross for there was a car coming; that Mr. Mercier didn't show any signs of hearing; * * * that the witness started to see if he could get near enough to Mr. Mercier to warn him; that when the witness hollered, the car on which the witness had been riding was starting up and was making noise; that when Mr. Mercier started around the car, witness started to follow him, and when witness was in the middle of the southbound track Mr. Mercier was in the middle of the northbound track and the car hit him; that he didn't notice whether there were any other lights on the front’ of the car from New Bedford ‘besides the bid headlight that blinded him so that he could not see’; that the witness, having seen that car coming from New Bedford and the car from which they had alighted having started, saw Mr. Mercier go around back of the car from which they got off; that witness saw that Mr. Mercier was in danger and witness shouted to him as loud as he could, but Mr. Mercier kept right on; that witness ran; ‘that he could see Mr. Mercier as he walked across; that Mercier was walking with his head straight ahead; that witness didn't notice that Mr. Mercier looked to the right or to the left; that so far as witness saw Mr. Mercier walked straight ahead, with his face straight ahead, walking at an ordinary gait, not hurrying; * * * it was dark and I could not discern whether he looked one way or the other; that the witness shouted as loud as he could but that Mr. Mercier did not stop.’

The motorman of the car which struck the deceased testified:

That the first thing that directed his attention to the accident was the breaking of glass near the crossing; that at that time his car was going about 20 miles an hour; that about 200 feet before he reached the crossing he blew his whistle; that nothing interfered with his vision except headlights on automobiles in the highway, which blinded him so that he could not see, and he thereupon threw off his are light in accordance with one of the rules of the defendant; that he saw the car from Fall River going toward New Bedford about 300 feet from the scene of the accident, and that he did not see the intestate before striking him.

When asked whether he could see the crossing, he replied:

‘I could see part way over on the nearer rail, but I couldn't see clear on to the other side. I could see the crossing in front of me in the distance, and a little way beyond the crossing;’ that the witness did not notice the other car stop; that he was watching the automobiles coming on the road; that it is his duty to look out for other cars that are coming, and to watch when they stop to let off passengers; that the lights from the automobiles struck his window when ...