Pigeon v. Massachusetts Northeastern St. Ry. Co.

• Decision Date: 29 May 1918
• Citation: 119 N.E. 762,230 Mass. 392
• Parties: PIGEON v. MASSACHUSETTS NORTHEASTERN ST. RY. CO. WARD v. SAME (two cases). O'CLAIR v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

230 Mass. 392

119 N.E. 762

PIGEON

v.MASSACHUSETTS NORTHEASTERN ST. RY. CO.

WARD

v.SAME (two cases).

O'CLAIR

v.SAME.

Supreme Judicial Court of Massachusetts, Middlesex.

May 29, 1918.

Report from Superior Court, Middlesex County.

Actions by Victor Pigeon and others against the Massachusetts Northeastern Street Railway Company, resulting in directed verdicts for defendant. On report to the Supreme Judicial Court. Judgment for defendant.

Qua, Howard & Rogers, of Lowell, for plaintiff Pigeon.

Edward Fisher, of Lowell, for plaintiffs Ward and others.

John J. Ryan and Jas. T. Fitzgerald, both of Haverhill, for defendant.

RUGG, C. J.

These are actions of tort to recover compensation for personal injuries suffered by the several plaintiffs in a collision between a motor vehicle in which they were riding and a trolley car of the defendant. The plaintiff Pigeon was the driver of a motor vehicle used as a butcher cart, and the other plaintiffs were riding with him as his guests. Pigeon drove into the dooryard of a farmhouse in a thinly settled district in the town of Dracut, which was approached by a curving drive, so that when the automobile came to a stop it was turned in the beaten path facing toward the highway, the forward end projecting about 2 feet beyond the corner of the house and being about 12 feet from the inner rail of the defendant's track. The distance from the front spring of the automobile to the steering wheel was 6 1/2 feet; the entire length of the automobile was 14 feet. Pigeon testified that, as he cranked his automobile preparatory to leaving the yard, he looked past the corner of the house toward Lowell (from which direction the car came), for a distance of about 450 feet, and saw no car. Still looking for any approaching car as he straightened himself up and seated himself, one of the women being on his left and two on his right, he started the automobile on low speed. He was able to stop the automobile within a distance of 3 feet. During the time he was traveling the distance of 12 feet from where the automobile stood to the inner rail of the track, he did not see anything coming until just as the collision took place. He listened for the sound of a whistle, but heard none until a moment before he was struck, and he heard no bell. The collision with a trolley car of the defendant occurred just as the automobile having traversed a distance of about twelve feet after starting reached the inner rail of the track. Pigeon was familiar with the place and knew that there was danger in driving out of the yard. In answer to the question, why he did not ask one of his guests to go forward to see if a car was coming before driving out, he answered:

‘The reason is this, ahead of the track I didn't see anything coming. I didn't think there was anything coming, and furthermore if I had heard a whistle blow from the distance that they should warn you before they get to that crossing, I would have plenty of time to stop my car.’

[1][2] The female plaintiffs all testified in effect that they were not talking from the time the automobile was cranked until the collision; that they realized that it was a place of danger; that they looked in the direction from which the car came, but did not see it until it was within a few feet; and that they were listening for a whistle and bell, but heard none. By the rules of the defendant it was the duty of the motorman to blow the whistle on his car when passing a post 250 feet before reaching the place of collision. The testimony of several witnesses that they were listening for the whistle, and did not hear it, had a tendency to show that no whistle was sounded. Slattery v. N. Y., N. H. & H. R. R., 203 Mass. 453, 89 N. E. 622,133 Am. St. Rep. 311. While doubtless the plaintiff might rely to some extent upon the failure of the whistle, they could not and did not undertake to depend upon it entirely.

[3] There was no precise testimony as to the speed of the car. But it appeared that the front axle of the automobile was bent, torn from the springs and carried away from the machine. The spokes of one front wheel were bent and broken, the frame badly bent, and the butcher cart body demolished. The car went about 135 feet beyond the point of collision on an upgrade. The fifth, eighth and ninth seat posts from the front of the car were broken. Although the indication from this fact alone well might be that the automobile struck the side of the car, there also was testimony that the front of the automobile was on the rail and was struck by the car, whereby it was thrown around and against the side of the car. Under these circumstances the place of impact was a question of fact.

[4] Pigeon had been for several years licensed to operate an automobile, but at the time of the accident his license had expired and had not been renewed. This was some evidence of his negligence in operating the car, but it was not conclusive and did not warrant the ordering of a verdict. Bourne v. Whitman, 209 Mass. 155, 95 N. E. 404,35 L. R. A. (N. S.) 701. That factor is laid on one side.

[5] All the circumstances confronting the...