Nelson v. Old Colony St. Ry. Co.

• Decision Date: 01 March 1911
• Citation: 94 N.E. 313,208 Mass. 159
• Parties: NELSON v. OLD COLONY ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

208 Mass. 159

94 N.E. 313

NELSON v. OLD COLONY ST. RY. CO.

Supreme Judicial Court of Massachusetts, Norfolk.

March 1, 1911

COUNSEL

William A. Pew, Jr., for plaintiff.

Asa P French and James S. Allen, Jr., for defendant.

OPINION

BRALEY J.

The plaintiff's team and the defendant's car while using the highway in the nighttime, traveling in opposite directions, approached each other as the team was going up hill and the car was coming down, when a collision followed causing personal injuries to the plaintiff, and damaging his horse and wagon. A verdict having been returned for the defendant the questions raised by the plaintiff's exceptions relate only to the admission and exclusion of testimony. The exceptions state the plaintiff testified, that 'there was a little moonlight, although it was not dark nor was there a clear light,' and that the road in the vicinity was very icy, but between the tracks there was no snow or ice all the way up the hill as far as he could see. It was consequently competent for the defendant to introduce evidence as to the temperature, cloudiness, and the fall of snow which had taken place at the time of the accident. If the observations of the witness, whose accuracy was not disputed, were taken at a point some five miles distant, it was for the presiding judge to decide whether they were so near in time and place, and the climatic conditions were sufficiently similar, as to make his evidence admissible. It cannot be said as matter of law that they were too remote. Ducharme v. Holyoke St. Ry., 203 Mass. 393, 89 N.E 561. Nor does an exception lie to the admission of certain experiments made by the defendant's surveyor. It is not shown that the judge's decision was clearly erroneous. Baker v. Harrington, 196 Mass. 339, 82 N.E. 33.

But a question of more difficulty arises as to the exclusion of evidence offered by the plaintiff to show that owing to the icy condition of the street teams habitually passed over the space between the rails from which the ice and snow had been removed. The jury would have been warranted in finding, that the motorman in charge had been running a car through this street for several years, and knew or in the exercise of due diligence should have known, that by reason of accumulated snow and ice on the roadway outside, travel was largely diverted to that portion within the defendant's location which was the only convenient and safe place where the plaintiff could pass. If in running the car the defendant's motorman was bound to exercise due care not to injure travelers whether they were few or...