Thorpe v. Boston Elevated Ry. Co.

• Decision Date: 20 May 1927
• Citation: 156 N.E. 748,259 Mass. 415
• Parties: THORPE v. BOSTON ELEVATED RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

259 Mass. 415

156 N.E. 748

THORPE

v.BOSTON ELEVATED RY. CO.

Supreme Judicial Court of Massachusetts, Middlesex.

May 20, 1927.

Exceptions from Superior Court, Middlesex County; P. M. Keating, Judge.

Action of tort by Roy M. Thorpe against the Boston Elevated Railway Company to recover for personal injuries in collision between truck in which plaintiff was a passenger and defendant's street car. Verdict for plaintiff, and defendant excepts. Exceptions sustained, and judgment entered for defendant.

J. T. Connolly, of Boston, for plaintiff.

F. J. Carney and J. A. Canavan, both of Boston, for defendant.

WAIT, J.

[1] The defendant contends that the trial judge erred in denying its motion that the jury be directed to return a verdict for the defendant. The bill of exceptions sets out no evidence in regard to damages, but purports to contain all the material evidence upon the issues of negligence and of due care. That evidence is contradictory. It was for the jury to determine the truth; but if evidence which was not contradicted, or which bound the plaintiff, disclosed facts that, as matter of law, precluded recovery, then it was the duty of the judge to direct a verdict.

[2] The evidence, taken most strongly for the plaintiff, would justify finding facts as follows: The plaintiff was seated on the right-hand side of the seat in the cab of a White motor truck which belonged to the Davis Ice Cream Company, and was driven by its servant Callahan. He had been using the truck for his own advantage by arrangement with Callahan, and, his purpose accomplished, was returning toward his place of business and that of the Ice Cream Company. Callahan chose the route of the return. One of his employees, a truck driver, was seated at his left, and Callahan sat next at the steering wheel on the extreme left of the seat, driving the truck. The plaintiff was blind in his left eye. He owned and had driven trucks hundreds of thousands of miles and was familiar with the place of the accident. He knew that Prospect street, Cambridge, bore a great deal of traffic, both of street cars and other vehicles; that is was doubletracked for electric cars; that on either side of the rails there was scant room for a motor truck between an electric car and poles at the edge of the sidewalk; that there was a ‘dead stop’ for electric cars before they crossed Harvard street in either direction; that Harvard street crossed Prospect street at about right angles; that the two streets were nearly equal in width-uncontradicted evidence showing Harvard street to be thirty-three feet, and Prospect street thirty-three feet four inches wide; that at varying distances, other streets crossed or ran into Prospect street.

The truck was passing along Prospect street going toward its junction with Massachusetts avenue at Central Square, and was two or three hundred feet from the intersection with Harvard street, when the plaintiff, as he testified, saw an electric car headed toward Central Square standing near Harvard street ahead of him, with a closed team at its right. All were stopped. The truck kept on till near them, when it also came to a momentary stop and then, as the first automobile followed by the second, a Ford, started to the left to pass the standing electric car, it also went on, turning to its left and following behind the Ford on the outbound track, as we shall call the track used by cars coming from Central Square. This brought it to the left of the middle of Prospect street, and occurred at a place where the view along the street was obstructed by the car, the automobiles and the closed team. The movement was in direct disobedience of the statute, now G. L. c. 89, § 4, which reads:

‘Whenever on any way, public or private there is not an unobstructed view of the road for at least one hundred yards, the driver of every vehicle shall keep his vehicle on the right of the middle of the travelled part of the way, whenever it is safe and practicable so to do.’

Section 5 makes a violation of section 4 an offense punishable by fine, and subjects the offender to civil action for any damage caused by his act.

The truck went on. When it was at about the middle of the electric car on...