Morrissey v. Connecticut Valley St. Ry. Co.

• Decision Date: 10 October 1919
• Parties: MORRISSEY v. CONNECTICUT VALLEY ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

233 Mass. 554

124 N.E. 435

MORRISSEY

v.CONNECTICUT VALLEY ST. RY. CO.

Supreme Judicial Court of Massachusetts, Franklin.

Oct. 10, 1919.

Exceptions from Superior Court, Franklin County; John A. Aiken, Judge.

Action by William H. Morrissey against the Connecticut Valley Street Railway Company. Verdict for defendant, and plaintiff excepts. Exceptions overruled.

Plaintiff's requests for instructions follow:

First. That the defendant was bound to run its cars upon its railway through the village of South Deerfield in a careful and safe manner and at a rate of speed so that accident and injury would not be caused to any inhabitants.

Second. That when approaching a street where it was a street which was legally accepted by the town so it was a way that was marked ‘Central street,’ and a street or way upon which dwelling houses were built, then a legal obligation was imposed upon the street railway company, its agents or servants, to so operate the cars as not in danger of the safety of the people coming from said street to the main highway.

Third. That if the jury find that the attention of the motorman was called to the opposite side of the street so that he failed to watch the track ahead of him and because of that failure injury was sustained by the plaintiff, the defendant is liable for said accident and injury.

Fourth. That if the jury find that the car was being run at a high and dangerous rate of speed through the thickly settled part of South Deefield where this accident and injury occurred, and the high rate of speed was the cause of the accident and injury then the defendant is liable.

Fifth. That if the jury find it was sufficiently dark so that a headlight ought to have been lighted and no headlight was in fact lighted, and the failure to have a lighted headlight on said car was the cause of the injury, then the defendant is liable and the plaintiff cannot recover.

Sixth. The plaintiff is not bound to use extraordinary care. All the care that he is required to use is the care of a reasonable and prudent man and if he looked in either direction as he came toward the Main street and saw nothing and again looked as he came upon the walk at the point where he could get a view up and down the street and saw no car, then it cannot be said as a matter of the law that he was negligent, and he would be entitled to recover.

Seventh. That the fact that the power of the car at the time of the accident was reversed in an attempt to stop the car, said car went a distance of from two hundred (200) to two hundred and fifty (250) or three hundred (300) feet beyond the point where the accident took place, then the jury have a right to consider whether the car was being driven at a high and dangerous rate of speed that it could not be stopped until it had gone the distance above referred to.

Eighth. That upon all the evidence there is no testimony to show that the plaintiff is not entitled to recover.

Ninth. That upon all of the evidenc there is no testimony to show that the plaintiff was in any degree negligent and that the evidence does show that the defendant, through its agents and servants, was negligent and careless in the operation of their car in its failure to sound the whistle giving warning of its approach and failure to have the headlight lighted and the further evidence that shows that the motorman was not keeping a lookout ahead.

Frank J. Lawler and Roland H. P. Jacobus, both of Greenfield, for plaintiff.

Wm. A. Davenport, Charles Fairhurst, and Wm. S. Clark, all of Greenfield, for defendant.

RUGG, C. J.

This is an action of tort wherein the plaintiff seeks to recover damages sustained by him in person and property arising from a collision between an express car operated by the defendant upon its tracks and an automobile owned and operated by the plaintiff. The verdict was for the defendant and the case is here on the plaintiff's exceptions.

The plaintiff's requests for instructions were denied rightly. The eighth and ninth in substance required a ruling that the plaintiff was in the exercise of due care and that the defendant was negligent. These were both controverted issues, as to which there was conflicting evidence. There was a considerable body of testimony touching the conduct of the plaintiff and of the motorman in charge of the defendant's car immediately before and at the time of the collision. The jury may have disbelieved all that which tended to support the contentions of the plaintiff and credited only that which supported those of the defendant. Com. v. Russ, 232 Mass. 58, 70, 122 N. E. 176. The case falls within the principle that it cannot usually be ruled as matter of law that a burden of proof has been sustained. McDonough...