Stoliker v. City of Boston

• Decision Date: 12 February 1910
• Citation: 204 Mass. 522,90 N.E. 927
• Parties: STOLIKER SAME v. CITY OF BOSTON. SAME v. KILEY. SAME v. CAHILL CONST. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

204 Mass. 522

90 N.E. 927

STOLIKER SAME v. CITY OF BOSTON. SAME v. KILEY. SAME v. CAHILL CONST. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

February 12, 1910

COUNSEL

Thos J. Boynton and Walter B. Grant, for plaintiff.

J. D McLaughlin, for defendant City of Boston.

Daniel J. Kiley and Henry D. Crowley, for defendant Kiley.

Daniel B. Ruggles, for defendant Cahill Const. Co.

OPINION

SHELDON J.

1. The first question in these cases is whether the jury would have been warranted upon the evidence in finding that the plaintiff was in the exercise of due care. Looking only at his conduct while driving on the street railway track between the posts of the elevated railway where the piles of timber had been put and that part of the way where the paving had been taken up and passage was obstructed, we are of opinion that such a finding could have been made. He was driving along in the ordinary way, going at only a slow trot, upon a part of the street which had not been disturbed, which it was agreed had been left open for the passage of street cars, and which upon the evidence the jury might say was openly and commonly used by other teamsters in the very way that he was using it. Lyman v. Hampshire, 140 Mass. 311, 3 N.E. 211; Maguire v. Fitchburg Railroad, 146 Mass. 379, 15 N.E. 904; Thying v. Fitchburg Railroad, 156 Mass. 13, 30 N.E. 169, 32 Am. St. Rep. 425; Hyde v. Boston R. Co., 186 Mass. 115, 71 N.E. 118; Jones v. Boston, 197 Mass. 66, 83 N.E. 309. He had no reason to apprehend that the timbers piled under the elevated railway had been so laid that their ends would protrude into the street and make it dangerous for him to pass in a place apparently left open for him and others to use. The jury might say that he was not negligent in failing to see the slight protrustion of the end of one timber as he approached it, although of course this question would be for them to determine. Moret v. George A. Fuller Co., 195 Mass. 118, 80 N.E. 789.

But the plaintiff entered upon this part of Atlantic avenue from the east, at India Wharf; and it was perfectly manifest to him at that time that the east side of the avenue was undergoing repairs, that the pavement on that side and the sidewalk had been partly torn up and that passage was otherwise obstructed; and the jury have found, in answer to a question pur to them by the judge, that there was at this time a barrier near the head of India Wharf, on the north side of the entrance to the avenue, extending from the sidewalk towards the east track of the street railway, 'with a sign that the street was closed for repairs, no passing through, or words to that effect.' The evidence makes it certain that the plaintiff must have passed this barrier. Could it have been found that this was consistent with the exercise of due care on his part?

It has not been found, and it was not claimed at the trial, that this barrier extended all the way from the sidewalk to the railway tracks. It seems to have guarded only the space of the roadway which actually had been made impassable for public travel. There was evidence that besides the space occupied by the railway tracks a considerable width of the street surface had been left untouched and in condition for travel. This space according to most of the evidence was a foot and a half or two feet wide; it was adjacent to the car tracks and increased so far the width east of the elevated structure that was left open and available. The defendant Kiley, however, testified that the roadway from the old curb to the track was clear and that the pavement was undisturbed in that entire section until some time after the accident. The plaintiff is entitled on these exceptions to have the most favorable view possible of the evidence taken: and if this testimony of Kiley's were believed, it might be doubted whether there was any ground for imputing negligence to the plaintiff in entering upon this part of the avenue. But we prefer to consider the question upon the other evidence.

It recently has been held by this court that a traveler on a city street in many cases may be justified in thinking that a notice placed upon a barrier in the street that the street is closed to public travel is no broader in its scope than the barrier itself, and that only that part of the street which is actually shut off by the barrier is intended to be closed to public travel. Hurley v. Boston, 202 Mass. 68, 88 N.E. 586. This applies to cases in which the whole of the road is worked for public travel, but only a part of its width is shut off; and it must apply more forcibly in a busy and crowded street and in cases where upon the apparent indications a part of the width of the street is not only not shut off, but according to the indications on the surface of the ground has purposely been left open for travel. But the jury could find that this was the case here. There was testimony that Atlantic avenue was a crowded street, carrying the heaviest traffic of any freight street in Boston, and although one witness testified that Saturday afternoon is a little quiet, and that it was exceptionally quiet on the Saturday afternoon on which this accident happened, the testimony of another witness was that 'Atlantic avenue was quite a good deal crowded by travel on week days, especially in the afternoon, Saturday as well.' And the jury could well find, on all the testimony, that there was much travel on this side of that avenue at the time of the accident. We already have seen that it could be found that the location of the barrier, the condition of the street, the regular current of travel, and the open and common use of this side of the avenue indicated that there was no intention to close this part of its width to public travel. Corbett, the inspector of the city of Boston at this place, a witness for the defendants, testified that cars passed here every seven or eight minutes, and that he saw a 'considerable number of teams passing on the track'; and he added, 'We were not supposed to keep teams out.'

Undoubtedly the plaintiff's knowledge of what was going on here and of the conditions that existed on the easterly side of this avenue was to be considered against him, especially in view of the testimony that he might safely have driven on the westerly side of the elevated structure. The care which he was bound to exercise must be proportioned to the visible dangers and to whatever notice or warning was given to him by barriers, signs or otherwise. But these considerations were for the jury. Weare v. Fitchburg, 110 Mass. 334; George v. Haverhill, 110 Mass. 506; Kelly v. Blackstone, 147 Mass. 448, 18 N.E. 217, 9 Am. St. Rep. 730; Norwood v. Somerville, 159 Mass. 105, 33 N.E. 1108; Torphy v. Fall River, 188 Mass. 310, 74 N.E. 465; Campbell v. Boston, 189 Mass. 7, 75 N.E. 96; Cutting v. Shelburne, 193 Mass. 1, 78 N.E. 752; Winship v. Boston, 201 Mass. 273, 87 N.E. 600. The jury could find, from the appearance of the street and the barrier and the manner in which the unbarricaded part of the street continued to be used for public travel with the apparent consent of the city and of the contractors, that the plaintiff had a right to suppose that the part of the street which he was using was intended so to be used. Leonard v. Boston, 183 Mass. 68, 66 N.E. 596; Learoyd v. Godfrey, 138 Mass. 315, 323. Nor could it be said as matter of law that it was negligence for him not to go over to the other side of a crowded street like this, where he might apprehend that it would be difficult for him to go in the direction that he wished to take. This is the converse of Davis v. Whiting & Sons Co., 201 Mass. 91, 95, 87 N.E. 199.

This plaintiff did not, as was the case in Compton v. Revere, 179 Mass. 413, 60 N.E. 931, enter upon a street which he knew was not graded or fit for travel. The jury could find that instead of disregarding a notice that a part of the street was unfit for public travel, as in MacFarlane v. Boston Elevated Railway, 194 Mass. 183, 80 N.E. 447, he adapted his conduct to the requirements of the notice by confining himself and his wagon to that part of the street to which the notice was not intended to apply. There was no evidence of such reckless conduct on his part as was testified to in Wood v. Westport, 185 Mass. 567, 70 N.E. 1018.

We are of opinion that the question of his due care should have been submitted to the jury.

2. There was evidence of negligence of the Cahill Construction Company, not only in the erection of this pile of lumber without proper guards or barriers, but in allowing at least one piece of timber to be put upon the pile which it placed between the posts of the elevated railway so as to protrude over that part of the way which was left open and designed for public travel. This was manifestly dangerous and likely to produce just such an accident as in fact happened. Brooks v. Kinsley Iron & Machine Co., 202 Mass. 228, 232, 88 N.E. 771. Cooper testified that he saw this state of affairs on the morning of the day of the accident; the jury could find that it so continued until after 4 o'clock in the afternoon, when the accident happened, and that it was the cause of the plaintiff's injury.

3. It appeared that the defendant Kiley had made a contract with the city of Boston which included the work that was being done on Atlantic avenue at the time. He was called as a witness by the plaintiff and testified that he had made a subcontract with the Cahill Construction Company, under which that company did all of the timber work, including the furnishing of all labor, lumber, piling and other material, while Kiley himself attended to the concreting, paving and laying of brick sidewalks wherever necessary; that all the work that was going on at the time and...