Renwick v. Eastern Massachusetts St. Ry. Co.

• Decision Date: 01 April 1931
• Citation: Renwick v. Eastern Massachusetts St. Ry. Co., 275 Mass. 145, 175 N.E. 475 (Mass. 1931)
• Parties: RENWICK v. EASTERN MASSACHUSETTS ST. RY. CO. ROCCO et al. v. SAME. GILCHRIST v. SAME.
• Court: Supreme Judicial Court of Massachusetts

275 Mass. 145

175 N.E. 475

RENWICK

v.EASTERN MASSACHUSETTS ST. RY. CO.

ROCCO et al.

v.SAME.

GILCHRIST

v.SAME.

Supreme Judicial Court of Massachusetts, Essex.

April 1, 1931.

Exceptions from Superior Court, Essex County; F. T. Hammond, Judge.

Separate actions by Frank Renwick against the Eastern Massachusetts Street Railway Company, and by Mary Rocco and others, administrators, and Lottie J. Gilchrist, administratrix, against the same defendant.To orders directing verdict for defendant, and to certain rulings in exclusion of evidence, plaintiffs separately bring exceptions.

Exceptions overruled.

J. F. Doyle and R. L. Sisk, both of Lynn, for plaintiffs.

S. Parsons and E. F. Cook, both of Lynn, for defendant.

WAIT, J.

These three cases, which were tried together, are before us upon the plaintiff's exceptions to orders directing verdicts for the defendant, and to certain rulings in the exclusion of evidence at the trial.We find no error.The injured persons were standing upon the roughly ballasted roadway of the street railway in what was, practically, a part of the highway reserved for the use of the railway, where they were struck by the side of a rapidly moving car.Two of them, Rocco and Renwick, had been riding in an automobile which had run out of gasoline and was standing, stalled and unlighted, parallel with the ballasted shoulder at the edge of the traveled portion of the roadway, close to the shoulder and within about thirty-four inches of the nearest rail of the car tracks.The third, Gilchrist, had come from an automobile which had passed the first and then stopped about twenty or thirty feet beyond it.He had dimmed the lights of his automobile and left it standing in the traveled way close to the shoulder, while he went back to make inquiries.All were between the first automobile and the nearest rail of the car track.All were familiar with the sparsely inhabited locality and knew that cars passed upon the tracks frequently at high speed.The hour was about eleven twenty o'clock on a cold and cloudy November night.There was a lighted electric street lamp about one hundred feet away to the east, and another about three hundred feet distant to the west.The street car approached from the east.It passed the creat of a hill about eight hundred and fifty feet away from the stalled automobile and then coasted down a grade which flattened from five per cent. for most of the distance to about two per cent. at the place of the accident.The headlight was burning, and the body of the car was well lighted.It was moving at a speed stated to be from thirty to fifty miles per hour and was swaying.All the injured men could have seen it approaching had they looked along the track near which they stood, and one of them was facing toward it.No car was in sight when they stepped from their automobiles.All had looked eastward to the crest of the hill.A witness who had walked westward following Gilchrist from the further automobile and was touched by the car, testified that he neither saw nor heard the car until it passed him going at from forty-five to fifty miles per hour and swaying from six to twelve inches out of line.He saw it hit Gilchrist.

The evidence required findings that Gilchrist, Rocco and Renwick failed to use the care of reasonable men to guard themselves from injury.They had put themselves unnecessarily in a place of danger, close to, if not absolutely in the path of any passing car; and had taken no care to guard against injury.The serious consequences of the accident properly could not blind the trial judge to the legal effect of the evidence.The case is governed by Will v. Boston Elevated Railway, 247 Mass. 250, 142 N. E. 44,Loyle v. Boston Elevated Railway, 260 Mass. 404, 157 N. E. 356.See, also, Notaro v. Boston Elevated Railway(Mass.)173 N. E. 431.All the circumstances appeared in evidence.There was no occasion for the operation of G. L. c. 231, § 85.Loyle v. Boston Elevated Railway, supra, page 406 of 260 Mass., 157 N. E. 356.We need not consider whether there was evidence to establish negligence of the motorman, who testified that he did not see the group close to the track until he was abreast of the Gilchrist automobile, and then did what he could to stop.

A witness, called by the plaintiffs, testified to...