Stubbs v. Boston & Northern Street R. Co.
| Decision Date | 03 January 1907 |
| Parties | STUBBS v. BOSTON & N. ST. RY. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Peters & Cole, for plaintiff.
John F Sweeney, Harry R. Dow, and Louis S. Cox, for defendant.
The defendant's first request was rightly refused. In the common use of the highway the parties were under the reciprocal obligation to exercise due care, and the entire width of the way including the portion occupied by the defendant's track, so far as it had been wrought for public travel, was lawfully open to the use of the plaintiff. O'Brien v. Blue Hill St. Ry. Co., 186 Mass. 446 71 N.E. 951.
At the time of the accident the plaintiff was driving a heavy wagon which was covered in such a manner that the top with the projecting sides formed a hood immediately back of which was the driver's seat, where he was seated. In the space back of this seat were shelves and cupboards on each side with an alley way between running to the rear where a door containing a window was placed, and by looking down the aisle the driver could obtain an unobstructed view of the roadway. If for this purpose instead of looking through the window he attempted to look back from the side of the wagon he would then be required to leave his seat and stand on a step. Upon the direct testimony of the plaintiff the jury could find that while driving at a slow trot on the west side of the track at the place where the collision took place he turned diagonally across to the store of a customer on the easterly side of the street, and that before turning he looked and listened to ascertain if a car was approaching, and believing the track to be clear drove over, when just as the rear wheels cleared the track the wagon was struck by the defendant's car. It also was for them to decide how far his evidence given in direct examination 'that as he drove into the track he looked as much as he could considering his wagon and listened, and heard nothing, and crossed over and drove out of the track' was modified by the cross-examination. If the defendant is given the benefit of any discrepancies between these statements, and the plaintiff's case as to his due care is left solely upon the answers elicited in cross-examination, still it could have been found that he was not in fault. It then would appear that the plaintiff leaned out of the side of the wagon and looked to the left as far as he conveniently could, and not seeing or hearing the car approaching, which then was about eight feet away, kept on over the track. They further could find that although the wagon was heavy, the horses had come to a walk, and the noise of the team was not sufficient to prevent him from hearing the approach of the car. Upon finding a clear road, and neither hearing or seeing a car coming, and relying on the presumption that the defendant would refrain from negligence, it cannot be said as matter of law that in the ordinary use of a public way under such circumstances the plaintiff was negligent in driving over the track. In Seele v. Boston & Northern St. Ry. Co., 187 Mass. 248, 72 N.E. 971, which the defendant claims governs this case, the plaintiff riding in a covered wagon had driven for a long distance close to the outer rail of the track when without taking any precaution to ascertain if a car was coming in his rear deliberately turned and drove over. In the present case the plaintiff, if believed, could have been found to have acted with reasonable prudence, and the case on this issue is within Kerrigan v. West End St. Ry. Co., 158 Mass. 305, 33 N.E. 523; Robbins v. Springfield Street Ry. Co., 165 Mass. 36, 42 N.E. 334; Vincent v. Norton & Taunton St. Ry. Co., 180 Mass. 104, 61 N.E. 822; Finnick v. Boston & Northern St. Ry. Co., 190 Mass. 382, 77 N.E. 500; Williamson v. Old Colony St. Ry. Co., 191 Mass. 144, 77 N.E. 655; Driscoll v. West End St. Ry. Co., 159 Mass. 142, 34 N.E. 171; Galbraith v. West End St. Ry. Co., 165 Mass. 572, 43 N.E. 501; White v. Worcester Consolidated St. Ry. Co., 167 Mass. 43, 44 N.E. 1052. See Hennessey v. Taylor, 189 Mass. 583, 76 N.E. 224, 3 L. R. A. (N. S.) 345. ...
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