Morey v. Gloucester St. Ry. Co.

• Decision Date: 19 May 1898
• Citation: 50 N.E. 530,171 Mass. 164
• Parties: MOREY v. GLOUCESTER ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

171 Mass. 164

50 N.E. 530

MOREY v. GLOUCESTER ST. RY. CO.

Supreme Judicial Court of Massachusetts, Essex.

May 19, 1898

COUNSEL

J.J. Flaherty, for plaintiff.

Lincoln & Badger and Hugh W. Ogden, for defendant.

OPINION

KNOWLTON J.

This suit was brought under St.1886, c. 140, to recover damages on account of the death of the plaintiff's intestate, whose life is alleged to have been lost by reason of the gross negligence of the defendant's motorman, while he himself was in the exercise of due care. There was very little, if any, evidence of negligence on the part of the motorman. The testimony tends to show that at about 8 o'clock in the evening of July 24th an electric car was passing along the track on Main street in the city of Gloucester, in the central part of the city; that the street was narrow, with narrow sidewalks, and a width of only 27 feet for travel with teams between the curbstones; that the railroad track was about in the middle of the street, and the car was running at about the usual rate of speed, when the plaintiff's intestate, who was 8 years and 1 month old, and who lived with his mother in a tenement over a grocery store, nearly opposite the place of the accident, was spoken to by his sister, a girl of 14 years of age, and made to understand that she wanted him to go into the house; and that he then started quickly to run across the street, and ran out diagonally in front of the car, where he was struck and killed. The evidence tended to show that the motorman gave a cry of alarm as soon as he saw the boy running before the car, and stopped the car as soon as he could. There was some evidence that the car was going a little faster than usual but the highest estimate of the rate of speed testified to by any witness was 8 or 10 miles an hour. The whole testimony tended to show that it was going slower than that. To recover under this statute, the plaintiff was bound to prove, not only that the motorman was negligent, but that he was guilty of gross negligence, which is recognized by the statute as something more than a mere want of ordinary care. Galbraith v. Railway Co., 165 Mass. 572, 43 N.E 501. We do not find it necessary to decide whether there was any evidence of gross negligence on his part, because we think that the ruling should be sustained on another ground. The evidence was undisputed, and the fact cannot be doubted, that the car could be seen for a considerable...