Sullivan v. Boston Elevated Ry. Co.

• Decision Date: 19 May 1904
• Citation: 185 Mass. 602,71 N.E. 90
• Parties: SULLIVAN v. BOSTON ELEVATED RY. CO. KNOX v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

185 Mass. 602

71 N.E. 90

SULLIVAN

v.BOSTON ELEVATED RY. CO.

KNOX

v.SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

May 19, 1904.

Exceptions from Superior Court, Suffolk County; Chas. U. Bell, Judge.

Actions by one Sullivan and by one Knox against the Boston Elevated Railway Company. Judgment for plaintiffs, and defendant brings exceptions. Exceptions overruled.

Dr. Bottomley, a witness for plaintiff, testified, among other things, that he had practiced six years, that his practice was chiefly surgical, and that he had performed from 100 to 200 operations for appendicitis.

Gargan, Keating & Brackett, for plaintiff Sullivan.

John H. Hurley, for plaintiff Knox.

M. F. Dickinson and Walter Bates Farr, for defendant.

LORING, J.

At the argument the defendant waived the contention made by it in its brief that the evidence did not warrant a finding that it was guilty of negligence, and insisted only that there was no evidence of due care on the part of the plaintiff, and that the presiding judge should not have let the jury find that Sullivan's attack of appendicitis was caused by the collision.

The accident happened under these circumstances: Sullivan was driving a large brewery wagon, half filled with empty beer barrels, on the right side of Main street, in Charlestown, going toward Boston. The center of the street was covered overhead by the elevated structure of the defendant, and on the surface by its tracks. The rows of iron posts supporting the elevated structure were 13 feet from the curbstone, and the westerly rail of the westerly track was 3 feet east of the posts. The brewery wagon in question had wings or outriggers over the wheels, and at the wings was 7 feet wide. A team which was ahead of the brewery wagon, and which was going in the same direction, was drawn up against the curbstone, and between the curbstone and of the posts of the elevated structure, as we understand the bill of exceptions. The space between this team and the post of the elevated structure not being sufficient to allow him to drive the brewery wagon between them, Sullivan ‘turned his team to the left, and upon the track, in order to pass by the posts.’ When his horses' heads got to and beyond the post in question, one of the defendant's cars going from Charlestown to Boston ran into the wagon from behind, threw it against the post in question, threw one of the horses down, and threw both plaintiffs from the seat of the wagon to the ground, a height of 8 or 9 feet. Sullivan testified that ‘just as I was swinging out I looked behind me, and I didn't see anything behind me, so I went right along, and the first thing I knew I was going toward this post.’ He further testified that ‘from the time he swung into the track until the car struck his wagon the horses went about forty feet, and were walking right along, straight ahead, the way the track runs.’ The nigh wheels were between the rails of the right-hand track and his off wheels about a foot and a half outside the right rail of that track. On cross-examination he testified that he turned onto the track about 30 feet east of the post, and that when he was struck his forward wheel was about 5 feet behind the post. It was admitted that from the noses of his horses to the tailboard of his wagon was 30 feet. There was evidence that the gong was not sounded. It did not appear from the plaintiff's witnesses how far off the car was when Sullivan turned the wagon in front of it. One of their witnesses testified that when he ‘first saw the brewery wagon it was coming right down the track, and the car was back about * * * fifty feet of so,’ and that ‘he did not see the team until it was on the track, and did not know where it came from.’ Another witness testified that he ‘saw the brewery wagon on the track in front of the car, going straight ahead, and the car struck it and knocked it to one side. When he saw the wagon the car was 25 or 30 feet from it.’ The defendant's motorman, on the contrary, testified that the wagon was turned onto the tracks when 10 or 15 feet behind the ...