Murphy v. Boston Elevated Ry.

• Decision Date: 01 March 1928
• Citation: 262 Mass. 485,160 N.E. 265
• Parties: MURPHY v. BOSTON ELEVATED RY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

262 Mass. 485

160 N.E. 265

MURPHY

v.BOSTON ELEVATED RY.

Supreme Judicial Court of Massachusetts, Middlesex.

March 1, 1928.

Exceptions from Superior Court, Middlesex County; W. A. Burns, Judge.

Action of tort by Jennie T. Murphy, administratrix of the estate of Daniel F. Murphy, deceased, against the Boston Elevated Railway, by writ with ad damnum in the sum of $15,000. Judgment for defendant. and plaintiff excepts. Exceptions overruled.

S. H. Lewis, of Boston, and V. J. Zeo, of Springfield, for plaintiff.

C. S. Walkup, Jr., of Boston, for defendant.

WAIT, J.

The questions presented by the bill of exceptions are, whether there was evidence which, as matter of law, required a finding that the plaintiff's intestate did not exercise due care for his safety, and whether the evidence warranted a finding that the defendant's motorman was negligent.

[1] The motorman testified that, as his car approached the junction of Ellsworth avenue and Cambridge street, in Cambridge, he saw the intestate turn from Ellsworth avenue, walk along the southerly sidewalk of Cambridge street, leave the sidewalk and proceed across that street looking neither to the right nor to the left but straight ahead and with no change of speed, until in spite of warning cries when he was some feet away from the car, he walked into its side and was thrown down. There was evidence which, though contradicted, would warrant finding that no gong was sounded; that the car was moving rapidly; that the motorman was conversing with fellow employees; and that no brake was applied before the warning shouts were uttered. There is, here, enough to justify finding that the motorman was negligent in failing to give timely warning to one who apparently needed it, and properly to control his car.

[2] The other question is not so readily answered. The action is based upon G. L. c. 229, § 3, which permits recovery only when the intestate-if, as here, he is not a passenger or in the employ of the defendant-is in the exercise of due care. We have interpreted this to mean that the person injured shall have been actively and actually in the exercise of due care. Hudson v. Lynn & Boston Railroad, 185 Mass. 510, 71 N. E. 66;Bothwell v. Boston Elevated Railway, 215 Mass. 467, 102 N. E. 665, L. R. A. 1917F, 167, Ann. Cas. 1914D, 275. See Mercier v. Union Street Railway, 230 Mass. 397, 403, 119 N. E. 764. There is a presumption that the intestate was using such care (G. L. c. 231, § 85); but where all the facts are beyond dispute, and where they are consistent only with lack of due care, that presumption is not controlling. Loyle v. Boston Elevated Railway (Mass.) 157 N. E. 356;Tobin v. Nahant & Lynn St. Ry. (Mass.) 157 N. E. 360;Bagnell v. Boston Elevated Railway, 247 Mass. 235, 142 N. E. 63;Doyle v. Boston Elevated Railway, 248 Mass. 89, 142 N. E. 693;Duggan v. Bay State Street Railway, 230 Mass. 370, 119 N. E. 757, L. R. A. 1918E, 680;Pigeon v. Massachusetts Northeastern Street Railway, 230 Mass. 392, 119 N. E. 762.

[3] In the case before us, there is uncontradicted evidence-much of it from witnesses called by the plaintiff-that the intestate at no time reached the rails upon which the car was moving, and that, without looking to right or left, he walked into the side of the car near the forward end. He was not dragged. The only marks of contact with the car were upon the right forehead. He was not run over. His skull was fractured and his liver and gall bladder were torn by the force of the blow or the fall. The only contradictory evidence is in regard to the point in Cambridge street at which he was struck. One witness-who was driving a truck across Cambridge street at Dana street, which the plan in evidence shows was some two hundred and sixty feet away and who did not see him struck but saw him falling away from the car-testified that he saw the intestate step upon a planking in Cambridge street at Ellsworth avenue. All the witnesses who saw the contact, and who were on the car, testified that it took place some distance west of the planking. Blood stains in the roadway of...