Snow v. Boston Elevated Ry.

• Court: Supreme Judicial Court of Massachusetts
• Citation: Snow v. Boston Elevated Ry., 303 Mass. 420, 22 N.E.2d 4 (Mass. 1939)
• Decision Date: 29 June 1939
• Parties: LUCILE SNOW v. BOSTON ELEVATED RAILWAY COMPANY.

303 Mass. 420

22 N.E.2d 4

LUCILE SNOW v. BOSTON ELEVATED RAILWAY COMPANY.

Supreme Judicial Court of Massachusetts, Middlesex.

June 29, 1939

April 4, 1939.

Present: FIELD, C.

J., DONAHUE, DOLAN COX, & RONAN, JJ.

Negligence Contributory.

A finding of contributory negligence of a plaintiff was not required by evidence that he had passed in front of a street car from which he had alighted to cross the street and, because of traffic beyond an adjoining track, had paused before crossing it, when, seeing a street car approaching on the adjoining track at a distance of over three hundred feet, he was unable to retrace his steps because the car he had left had moved forward, and he was caught between the cars and injured.

TORT. Writ in the Superior Court dated July 15, 1936. A verdict for the plaintiff in the sum of $6,000 was returned before Greenhalge, J.

D. P. Donaldson for the defendant.

P. R. Johnson &amp R.

C. Rounds, for the plaintiff.

DOLAN, J. This is an action of tort to recover compensation for personal injuries sustained by the plaintiff as a result of being crushed between two trains of the defendant. The jury returned a verdict for the plaintiff and the case now comes before us on the defendant's exceptions to the denial of its motion for a directed verdict, and of its motion that a verdict be entered for it under the leave reserved by the judge. It is rightly stated in the bill of exceptions that there was evidence from which the jury could have found negligence on the part of the defendant which "contributed to the plaintiff's injuries." The only question now in issue is whether the evidence requires a ruling that the plaintiff was guilty of contributory negligence as matter of law.

There was evidence that on November 5, 1935, at about 8:20 A.M., the plaintiff was a passenger on a train of the defendant which was bound from Harvard Square to Watertown. The train was proceeding along Mt. Auburn Street, in Watertown. It stopped at Winthrop Street, a regular stop, and the plaintiff alighted from the right hand front door of the forward car. At this point Mt. Auburn Street is about fifty-six feet wide, inbound and outbound tracks of the defendant being in the center of the street. The two trains of the defendant involved were two-car trains, each more than ninety-seven feet in length, and of such width that in passing each other where the accident occurred the narrowest space between them was eleven inches. After alighting from the outbound train the plaintiff looked west toward Watertown. She could see in that direction for about a thousand feet. She saw no automobiles approaching but did see an inbound train of the defendant coming at a distance of about three hundred forty feet. She was familiar with the location, and to reach her destination she had to cross both sets of tracks and the further half of the highway to the sidewalk which was on her left in the direction in which she had been travelling. She looked up at the operator of the outbound train; he looked directly at her, and she crossed in front of this train and stood opposite its left front door and between the two sets of tracks. She looked again toward Watertown and saw a line of automobiles approaching rapidly. Four or five of these vehicles had already passed the inbound train, and the first vehicle was too near her and moving too rapidly to permit her to cross the street in safety. She started to retrace her steps, to go to the sidewalk on her right, but as she took one or two steps in that direction the outbound train moved forward slowly, and when she reached the "front of the car . . . it was going too fast for her to go in front of it." Her "escape seemed to be blocked both ways" and she remained where she was between the tracks, facing the inbound train, which continued to approach with no apparent reduction in speed. She was crushed between the two trains.

The burden of proving contributory negligence on the part of the plaintiff rested on the defendant, G.L. (Ter. Ed.) c. 231, Section 85 and a verdict for the defendant could be directed by the judge only if the evidence by which the plaintiff was bound required a conclusion as matter of law that she was guilty of contributory negligence. Joughin v. Federal Motor Transportation Co. 279 Mass. 408 , 409. ...