Sawyer v. Worcester Consol. St. Ry.

• Decision Date: 15 October 1918
• Parties: SAWYER v. WORCESTER CONSOL. ST. RY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

231 Mass. 215

120 N.E. 404

SAWYER

v.WORCESTER CONSOL. ST. RY.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 15, 1918.

Exceptions from Superior Court, Worcester County; Jabez Fox, Judge.

Action of tort for fatal personal injuries, by Clara E. Sawyer, administratrix, against the Worcester Consolidated Street Railway. Verdict for defendant, and plaintiff excepts. Exceptions overruled.

Plaintiff asked the court to rule:

[231 Mass. 216]1. Street cars, while they must run on tracks provided for them, have no exclusive right of way which puts upon persons traveling otherwise, the burden of constantly looking and listening for their approach, so that if they fail to do so and are injured, their conduct should invariably preclude recovery.

2. It is always a consideration of importance, especially when the injured person is run into from behind, who first got possession of the street; that is, was the injured person having looked before going into the street, sufficiently ahead of the oncoming car or vehicle that he reasonably may expect its driver to see him and avoid running into him whether he continues in the line in which he is moving or turns to further cross the street?

3. While it is unquestioned that the collision would not have occurred if the deceased had not attempted to cross the street, yet it cannot be ruled as a general proposition of law that the traveler is necessarily negligent because he attempts to cross a street even without first looking or listening to ascertain whether a vehicle is approaching. Such a traveler has a right in the absence of anything to the contrary, to assume that other persons using the highway will exercise a proper degree of care towards him.

The court refused to give the rulings.

The portions of the charge excepted to were as follows:

We come now to the question, what was the duty of the motorman on seeing a man, not upon the tracks, but by the side of the tracks walking along? You see at once that what he was bound to do under those circumstances may well depend upon the question whether the motorman had a right to assume that the traveler's attention was not distracted.

For example, suppose a motorman sees ahead of him-a man in the roadway chasing his hat which has been blown off by the wind, or supposing he sees a boy looking into the air intent upon getting his ball with his back turned, he may well be accused of carelessness if under such circumstances he does not keep his car under control, if he has time, so that he may avoid an accident. If the attention of the boy or man is distracted, has he a right to proceed upon the theory that the man or the boy ought not to be in the street without looking out for himself? Under the circumstances he is bound to assume that the man in not looking out for himself or the boy not looking out for himself, that he must exercise the care that is required for both. So the question of the attention or nonattention of Mr. Sawyer may well be a question which you will consider in passing upon the question whether the motorman ought to have stopped before. Certainly we shall not lay down any general rule that because a motorman sees a man walking in the street ahead of him that he must act upon the theory that that man may suddenly step in front of the car, otherwise it would be impossible for cars to proceed with the celerity that the public demand. People are constantly coming out into the street for the purpose of taking a car and when they have arrived at the tracks they stop and let the car go by. When a motorman sees a man walking deliberately, as an old man might walk, knowing that any man walking at that pace which an old man usually takes can stop in his tracks, it isn't necessary to assume that he will have to slow a little before he comes to a stop when he has decided to stop.

Having regard to the situation as you see it daily in the streets certainly it is not necessarily to be said that because a motorman sees a man ahead of him on the side of the street he must govern his car upon the theory that that man may suddenly turn and step upon the tracks. Now that is the case with reference to the motorman. Was there any ground for him to assume that this man was oblivious of his approach and was intending to cross and go upon the tracks? What was he as a man exercising ordinary prudence to apprehend as he saw the man ahead of him?

Mr. Sawyer knowing that a car was approaching, knowing so long as he stayed outside the sweep of that car, a space twenty-two or twenty-four inches, that he was perfectly safe, and it was only when he got ahead of that car that he would be in danger. It was at night and at a time when his attention was not distracted. He could not only see the approaching car but hear it. Is the fact that he was ahead of that car reasonably to be explained upon the theory that he himself was in the exercise of ordinary care?

Did Mr. Sawyer know that this car was coming? Is there any doubt that that car, whether the gong sounded or not, could be heard in that still night at a considerable distance away so far ahead that he could have been warned if he had been attending to it, that he would have been warned of its approach.

Supposing it was not sounded. Well, the importance of that question so far as it relates to the conduct of the motorman is concerned may depend in your mind upon the question whether the motorman realized-or in the exercise of due care should have realized-that there was danger ahead. To put that illustration which I made before: Suppose a motorman sees a boy ahead with his eyes turned and eyes in the air intent upon catching a flying ball, having reason to believe the boy's attention is distracted, that he is paying no attention to approaching cars or anything else, you may well say in such a case as that that the motorman has no business to proceed within striking distance of that boy unless by his gong or otherwise he could have attracted the boy's attention.

But supposing, on the other hand, the motorman sees ahead of him walking in the street at some distance from the track, a man walking slowly, his attention not distracted, not talking with anybody, not reading any newspaper, not having his attention fixed on some distant object, having reason to suppose the man is in the possession of the usual faculties, not the staggering drunken man, but walking as a normal man, the question then is...