Pitman and Brown Co. v. Eastern Massachusetts Street Railway
| Decision Date | 29 March 1926 |
| Citation | 255 Mass. 292 |
| Parties | PITMAN AND BROWN COMPANY v. EASTERN MASSACHUSETTS STREET RAILWAY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
January 19, 1926.
Present: PIERCE CARROLL, WAIT, & SANDERSON, JJ.
Negligence Contributory, In use of highway, Motor vehicle.
At the trial together of two actions of tort against a street railway company, one by the owner of, and the other by a guest of the driver in the cab of, a loaded truck into which a street car of the defendant ran on a misty night after the truck came from an intersecting street upon the tracks of the defendant where there was evidence that, while the truck was going twenty-eight feet, the street car went four hundred and sixty feet and that the driver of the truck and his guest both looked up the defendant's track until within the last eight feet of their progress, when their view was obscured by their load, and saw no car, and that no gong was sounded on the car, it is proper to refuse to order verdicts for the defendant, the questions of the due care of the driver in the action where the burden of proving his due care was on the owner of the truck, and of contributory negligence of the guest in the action where the burden of proving contributory negligence was on the street railway company, both being for the jury.
TWO ACTIONS OF TORT, the first for damages to a motor truck, and the second for personal injuries, caused by a collision of a street car of the defendant with the truck, in the cab of which the plaintiff in the second action was riding as a guest of the driver. Writs dated, respectively, December 19, 1921, and March 17, 1922.
In the Superior Court, the actions were tried together before Brown, J Material evidence is described in the opinion. At the close of the evidence, the defendant moved that verdicts be ordered in its favor. The motions were denied. The jury found for the plaintiff in the first action in the sum of $600, and for the plaintiff in the second action in the sum of $400. The defendant alleged exceptions.
J.J. Ronan, for the defendant.
H.E. Jackson, for the plaintiff Pitman and Brown Company.
E.S. Underwood, for the plaintiff McGuire.
The first action was brought to recover damages for injuries to the truck of the plaintiff, Pitman and Brown Company (hereinafter called the corporation), arising from a collision with a street car of the defendant while the truck was being driven by the corporation's chauffeur at about five o'clock in the afternoon of November 14, 1921, on Chelsea Street in Charlestown near its intersection with Medford Street. The second action is for personal injuries sustained by the plaintiff McGuire, who was riding in the cab of the truck at the time of the accident. A verdict was rendered for the plaintiff in each action, and the only questions argued relate to the due care of the plaintiff's chauffeur in one case, and of the individual plaintiff in the other.
Chelsea Street is a main highway running north and south and leading from Boston to Lynn, and is intersected on its westerly side at about right angles by Medford Street. Chelsea Street is about forty-nine feet wide from curb to curb and sixty feet between property lines, and in the middle of the street are located double tracks of the defendant. The truck had come from Medford Street and at the time of the accident was moving across Chelsea Street toward Lynn in a somewhat diagonal direction for the purpose of getting upon the driver's right hand side of Chelsea Street. There was evidence that the collision occurred on the Lynn side of Medford Street. A heavy mist was falling and the night was dark. The road surface over which the truck was moving was constructed of cobble stones and was slippery and rough. A street light was near the corner of Medford and Chelsea streets and there were lights on the front and back of the truck as well as upon the street car. The truck was a two and a half ton truck twenty-five feet long, carrying a load of five tons of lumber and glass covered with a white canvas. The driver and McGuire were in a steel cab painted white with leather sides and isinglass windows which, according to the testimony of the chauffeur, at the time of the accident were in the pockets in the lower half of the doors.
The motorman testified that the cab was closed on the right side. The...
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