Pendleton v. Boston Elevated Ry. Co.Phillips v. Same

• Decision Date: 14 February 1929
• Citation: 165 N.E. 36,266 Mass. 214
• Parties: PENDLETON v. BOSTON ELEVATED RY. CO. PHILLIPS v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

266 Mass. 214

165 N.E. 36

PENDLETON

v.BOSTON ELEVATED RY. CO.

PHILLIPS

v.SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 14, 1929.

Exceptions from Superior Court, Suffolk County; Franklin T. Hammond, Judge.

Action by Doris J. Pendleton, p. p. a., against the Boston Elevated Railway Company, and action by Florence E. Phillips against the same defendant. Verdict for plaintiffs, and defendant excepts. Exceptions overruled.E. H. Abbot, Jr., of Boston, for plaintiffs.

J. I. Krafsur, of Boston, for defendant.

CARROLL, J.

On January 14, 1923, about fifty-five minutes past two o'clock in the morning, on the Fellsway, in Medford, there was a collision between a sleigh belonging to the Northampton Street Stables, Inc., in which the plaintiffs were riding, and a street car of the defendant. The plaintiffs were injured. At the trial their contention was that the defendant's motorman was negligent. They recovered verdicts.

The plaintiffs were members of a sleighride party consisting of twenty or thirty people, which departed from Boston about seven o'clock on the evening of January 13, went to the home of one Parnham, in Wakefield, reaching there about nine o'clock and leaving at about twelve o'clock to return to Boston. There was evidence from which it appeared that the point of collision of the street car and the sleigh was on the traveled way, about two hundred fifty feet north of the highway bridge over the railroad tracks. The Fellsway for the most part consists of two roadways divided by a grassed space reserved for two car tracks; north of the bridge at the distance of about three hundred eighty feet from it, the two roadways merge into a single street wrought for travel with car tracks in the center; this street rises at a five per cent. grade to the bridge and descends on a similar grade to the reservation on the other side of the bridge. As the sleigh was going toward Boston, after passing the reservation the driver started to cross the street railway tracks to the right side of the Fellsway, when the defendant's outbound street car descending the grade hit the sleigh, causing the injuries to the plaintiffs.

There was evidence that as the sleigh crossed the tracks it could have been seen from the bridge two hunderd fifty feet distant; that the car did not stop until about one hundred seventy feet from the point of collision; that it was moving at the rate of thirty-five miles an hour; that the night ‘was a very crisp, clear winter night with abundance of light’; and that there was no obstruction to the view between the bridge and the point of collision.

The driver of the sleigh testified that when he first saw the car his pole horses were on the outbound track and his leaders on the inbound track; that he whipped up his horses and tried as best he could to get the sleigh off the tracks; that the car came on without any decrease of speed. There was evidence that there were bells on the harness and the sleigh was equipped with lights.

The sleigh was hired from the stables company for $35, the company supplying the driver, and each person in the party paying an equal share. There was a high driver's seat in front and two seats running lengthwise along the sides. Both plaintiffs sat on the lefthand side of the sleigh. Miss Pendleton testified that she felt safe while the driver was driving the sleigh but did not entirely rely on him; and she did not see him do anything unusual and observed from time to time that ‘he seemed to be going along very nicely.’ Miss Phillips testified that she remembered nothing after two o'clock; that ‘she looked around occasionally going out and coming back.’

[1] The negligence of the motorman and the plaintiffs' care were questions for the jury to decide. The rate of speed of the street car, the opportunity to see the sleigh, and the failure to prevent the collision, were questions of fact. The jury could have found that, with due care on the part of the motorman, he could have avoided the collision. Bombard v. Worcester Consolidated Street Railway, 234 Mass. 1, 4, 124 N. E. 434;Wright v. Concord, Maynard & Hudson Street Railway, 235 Mass. 456, 459, 126 N. E. 666.

The plaintiffs' due care was for the jury to decide. They were not the guests of the owner or driver of the sleigh. The rule applicable to a guest who trusts entirely to the driver of the vehicle in which the guest is riding and fails to exercise any care for his own safety has no application here. Shultz v. Old Colony Street Railway, 193 Mass. 309, 323, 79 N. E. 873,8 L. R. A. (N. S.) 597, 118 Am. St. Rep. 502,9 Ann. Cas. 402;Lambert v. Eastern Massachusetts Street Railway, 240 Mass. 495, 497, 134 N. E. 340, 22 A. L. R. 1291;Oppenheim v. Barkin (Mass.) 159 N. E. 628. Even in the case of a guest, the negligence of the driver of the vehicle in which the guest is riding is not to be imputed to him if he uses proper care for his own safety. Shultz v. Old Colony Street Railway, supra; Ingalls v. Lexington & Boston Street Railway, 205 Mass. 73, 90 N. E. 1154;Fahy v. Director General of Railroads, 235 Mass. 510, 514, 126 N. E. 784. The relation between the plaintiffs and the driver of the sleigh was not that of master and servant. They, with others, hired the sleigh from the Northampton Street Stables, Inc., which corporation furnished the conveyance and the driver. In driving the horses and carrying the party the driver was not the servant of the plaintiffs, whose orders he was bound to obey. Randolph v. O'Riordon, 155 Mass. 331, 336, 29 N. E. 583;Griffin v. Hustis, 234 Mass. 95, 99, 125 N. E. 387;Dumas v. Ward, 251 Mass. 497, 502, 146 N. E. 709. The plaintiffs, while riding in this vehicle driven by one who was not their agent or servant, did not fail in the exercise of proper care by leaving its management to the driver to the same extent as a person of average prudence would have done. Stemler v. Cady, 246 Mass. 384, 386, 141 N. E. 109;Donoghue v. Holyoke Street Railway, 246 Mass. 485, 492, 141 N. E. 278. The danger to the plaintiffs came upon them suddenly and without warning. Seated as the were, along the side of the sleigh, they were not negligent in failing to observe the danger and they had no...