Robbins v. Springfield St. Ry. Co.

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: FIELD
• Citation: 42 N.E. 334,165 Mass. 30
• Decision Date: 30 November 1895
• Parties: ROBBINS v. SPRINGFIELD ST. RY. CO

165 Mass. 30
42 N.E. 334

ROBBINS
v.
SPRINGFIELD ST. RY. CO

Supreme Judicial Court of Massachusetts, Hampden.

Nov. 30, 1895.

Exceptions from superior court, Hampden county; Justin Dewey, Judge.

Action of tort by Brinton P. Robbins against the Springfield Street-Railway Company to recover for personal injuries. There was a verdict for plaintiff, and defendant excepts. Exceptions overruled.

The evidence showed that plaintiff, who was a man 79 years of age, had lost the sight of his left eye, and that his hearing was to some extent impaired; that, just prior to the accident, plaintiff was traveling down the righthand side of a street, with a horse and wagon; and that, in attempting to cross to the lefthand side, it became necessary to cross defendant's street-railway track; and that, while so crossing, an electric car of defendant, traveling in the same direction, struck plaintiff's wagon, throwing plaintiff therefrom, seriously injuring him.

The following are the instructions asked by defendant, and refused: “(1) Upon the whole evidence, the plaintiff cannot recover. (2) If the defects in the eyesight and hearing of the plaintiff, which defects were unknown and unnoticed by the motorman, contributed directly to the plaintiff's injury, then he cannot recover. (3) If the plaintiff failed to look and listen, when, by looking or listening, he could have perceived the approach of the car, and plaintiff drove in front of the car, and such failure to look and listen contributed directly to his injury, then he cannot recover, and the verdict should be for the defendant.”

The jury were instructed, inter alia; that “it cannot be said, as a matter of law, that a man who is deaf and blind has not a right to travel unattended on a street in the city.”

165 Mass. 36]J.B. Carroll and W.H. McClintock, for plaintiff.

William H. Brooks, for defendant

FIELD, C.J.

The questions of due care of the plaintiff, and of the negligence of the defendant's servants, we think, were for the jury, on the evidence which appears in the exceptions. The first request for instruction was therefore properly refused. Ellis v. Railroad Co., 160 Mass. 341, 35 N.E. 1127;

[42 N.E. 335

Driscoll v. Railway Co., 159 Mass. 142, 34 N.E. 171.

The second request ought not to have been given in the form in which it was offered, and the instructions upon this part of the case were correct. Neff v. Wellesley, 148 Mass. 487, 20 N.E. 111.

The third request could not properly have been given as an absolute...