Slayton v. West End St. Ry. Co.

• Decision Date: 30 June 1899
• Citation: 174 Mass. 55,54 N.E. 351
• Parties: SLAYTON v. WEST END ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

174 Mass. 55

54 N.E. 351

SLAYTON v. WEST END ST. RY. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

June 30, 1899

COUNSEL

James E. Cotter, for plaintiff.

M.F Dickinson, Jr., and W.B. Farr, for defendant.

OPINION

BARKER J.

1. It was right to submit the question of the plaintiff's due care to the jury. While the plaintiff admitted that she did not notice the pile of rails over which she fell, it cannot be said that that fact alone required it to be held, as matter of law, that she was negligent. The presence of the rails was a temporary condition, which she was not bound to anticipate. While there were many lights in the vicinity, the jury might have found that one of the two lanterns placed on the pile as a warning to travelers had been extinguished. The plaintiff was following her daughter who passed straight over the pile without accident. Whether her conduct was that of ordinarily prudent persons, under like circumstances, was for the jury. The facts in the present case are not the same as in Raymond v. City of Lowell, 6 Cush. 524, where the obstruction was a culvert grating, and the accident happened in broad daylight. Here the accident happened at 9 o'clock in the evening, and the evidence was conflicting as to what the conditions as to light and darkness were at the point where the rails were piled.

2. There was evidence which would justify the jury in finding that the defendant was responsible for the presence of the obstruction of the highway. There was no dispute that the rails were placed where they were shortly before the time of the accident, for the purpose of being put into the defendant's track, and that they were soon after so disposed of. The defendant's road had long been and was then in operation. There was uncontradicted evidence that work was being done upon the railway, in taking out old rails and putting in new ones, by a firm of contractors for street-railway work, one of whose workmen had placed the warning lamps on the pile of rails over which the plaintiff fell, but no evidence of any contract between that firm and the defendant was introduced, although the defendant did put in evidence in its own behalf. The defendant's principal argument in support of its contention that the evidence was not sufficient to warrant a verdict for the plaintiff is that, as the work of substituting new for old rails was being done by a firm of contractors, the jury must find...