Tierney v. Boston Elevated R. Co.
| Decision Date | 08 January 1914 |
| Citation | 216 Mass. 283,103 N.E. 783 |
| Parties | TIERNEY v. BOSTON ELEVATED RY. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John J. Cummings and Henry J. Dixon, both of Boston, for plaintiff.
Russell A. Sears and Pitt F. Drew, both of Boston, for defendant.
In this case a verdict was directed in favor of the defendant on the evidence introduced by the plaintiff. The action was brought to recover for the death of Lawrence Tierney. Tierney left his home on the day he was killed and went to the corner of Park and Salem streets in the city of Medford, to take an outbound car to go to his work. He waited in the doorway of the apothecary shop shown on the plan, until the car he was to take had left Court street some 75 yards west of Park street. When the car which he was to take had left Court street, Tierney started to cross the tracks to board it on the front platform at the white post east of Park street. As he came to the 'outgoing rail going to Boston' he was hailed by one Harrington, who called to him that he had got to 'brace up' if he wanted 'to get over.' Thereupon Tierney walked faster, and Harrington thought that 'he got across the track all right,' but he was struck and thrown on the rurther side of the further or outbound track. His body was lying some 15 feet to two car lengths behind the car which struck him when it was brought to a standstill. He was killed at 5 minutes before 5 o'clock in the morning of an October day. There was evidence that it was very foggy and very dark at the time of the accident.
There was also evidence that the car in question usually slowed down opposite the light shown on the plan on the westerly corner of Park street, but that on the morning in question it was running at the rate of 40 miles an hour and did not diminish its speed until it stopped with 'a terrific noise of grinding,' when it struck the plaintiff's intestate at about opposite the white post on the easterly side of Park street.
On this evidence the jury were warranted in finding that the motorman was negligent in the way in which he ran the car. It could be found that although the intestate was in plain sight, within the limits of the light on the corner of Park and Salem streets and of the headlight of the car in question, the motorman ran his car at 40 miles an hour until it ran into and killed the intestate.
Whether the intestate was guilty of contributory negligence depends upon the view which the jury were justified in taking of the testimony hereinafter quoted, given by Harrington.
It appeared that it was the custom for Harrington and the intestate to wait in the door of the apothecary shop for their respective cars which they took each morning to go to their work. On direct examination Harrington testified that the car was at the bakery when he (the deceased) reached the outside rail of 'the track on which he was killed.' On cross-examination he repeated this testimony. On being asked, 'When Mr. Tierney was on the first rail of the track upon which he was injured, did I understand you to say yesterday that the car then was back on the other side of Park street?' and he answered, 'Yes.' But on being cross-examined further and in connection with the plan he testified in answer to the question, 'Now, then, when he was about to go onto the first rail, that one there (indicating the rulers) where was the car, how close to him?' Harrington testified that it was 'right on top of him,' 'about 5 or 6 feet away.' This was repeated; and when he was...
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