Scherer v. Boston Elevated Ry. Co.

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: DE COURCY
• Citation: Scherer v. Boston Elevated Ry. Co., 238 Mass. 367, 130 N.E. 840 (Mass. 1921)
• Decision Date: 27 April 1921
• Parties: SCHERER v. BOSTON ELEVATED RY. CO.

238 Mass. 367

130 N.E. 840

SCHERER

v.BOSTON ELEVATED RY. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

April 27, 1921.

Exceptions from Superior Court, Suffolk County; Frederick W. Fosdick, Judge.

Action by Hubert Scherer against the Boston Elevated Railway Company. Verdict for plaintiff, and defendant excepts. Exceptions overruled.

Street railroads k117(23)-Contributory negligence of pedestrian, failing to look, held for jury.

In an action against a street railway for injuries to a pedestrian attempting to cross the track, who looked and saw a car about 120 feet away, coming some 12 miles an hour, and so attempted to cross, but was struck, questions whether plaintiff should have looked toward the car after he left the sidewalk, and whether he should have waited for the car to go by, and other considerations involved in the issues of due care and the motorman's negligence, held for the jury, apart from the due care statute.

Robert T. Healey, Arthur D. Healey, and Emery I. La Pierre, all of Boston, for plaintiff.

John T. Hughes, of Boston, for defendant.

DE COURCY, J.

On the testimony, mainly that of the plaintiff, the jury could find these facts: During the evening of March 20, 1918, Scherer was in Cambridge, where he had recently attended the Radio School. Shortly before midnight he had occasion to cross Prospect street, near Broadway. Before leaving the sidewalk he stopped, looked in both directions, and saw a car about 120 feet away, coming from Central Square, and then moving about 12 miles an hour. ‘Thinking that the coast was clear’ and that he had plenty of time, he proceeded on the cross-walk at a 3 or 4 mile pace, and had almost cleared the farther rail of the second track, when he looked up and saw that the car was right upon him. He jumped, but did not quite clear the fender, and was thrown so that his right hand went underneath the wheel, and he lost one of his fingers. It was well lighted at the place of the accident. It could be found that the motorman increased the speed of the car, as, according to the plaintiff's figures, it covered a distance of 120 feet while he went but 21 feet. No gong was sounded. Scherer's opinion was that the car was going 25 miles an hour when it struck him, and it did not stop after the accident.

On these facts, quite apart from the application of the due care statute, he was entitled to go to the jury on the questions whether he should have looked toward the car after he left the...