Will v. Boston Elevated Ry. Co.
| Decision Date | 04 January 1924 |
| Citation | 142 N.E. 44,247 Mass. 250 |
| Parties | WILL v. BOSTON ELEVATED RY. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Report from Superior Court, Suffolk County; Louis S. Cox, Judge.
Action of tort by George Will against the Boston Elevated Railway Company for personal injuries. On report after a verdict for plaintiff. Judgment for defendant.
W. C. Jaycox and O. A. Marden, both of Boston, for plaintiff.
R. L. Mapplebeck, of Boston, for defendant.
The evidence in its aspect most favorable to the plaintiff would have warranted a finding that he was being carried as a guest in the rear seat of an automobile of a friend to take a trolley car of the defendant; that the driver of the automobile, passing the trolley car as passengers were alighting from it, went to a point as far to the right-hand side of the street as he could get, just beyond the white post indicating the next regular trolley car stop where he stopped the automobile; that the plaintiff opened the door on the left side of the automobile and as he was getting out without looking to see if any car was coming, the car coming from behind struck the automobile on the left-hand side on the back light, the door was bent and the plaintiff was struck and injured, and that the street was straight for a distance of some 400 feet from where the trolley car was stopped discharging passengers to the place of the accident.
[1][2][3] There was no evidence to support a finding of due care on the part of the plaintiff. His own testimony was that he alighted from the automobile into the pathway of the trolley car, without looking to see if any car was coming; that he did not hear or see the car or know anything about it until it struck him. His view was unobstructed. He is bound by his own testimony. Sullivan v. Boston Elevated Railway, 224 Mass. 405, 112 N. E. 1025. It is manifest that the slightest attention to his own safety would have prevented his injury. While he might depend to a reasonable extent on the expectation that the motorman would not be negligent, he was not justified in abandoning all precautions for self-protection. The circumstance that the automobile had stopped just beyond a white pole does not exculpate the plaintiff. It is common knowledge that trolley cars do not stop at white poles unless there are persons waiting to become passengers or passengers to alight. There is nothing to indicate that in the case at bar there was any occasion for this trolley car to stop at this pole. Merely that an automobile comes to a stop near a white pole without signal of any kind so far as appears was no notice to those in charge of the car to bring it to a standstill. The striking of the back light of the automobile by the trolley car has no bearing on the due care of the plaintiff. It does not appear that the plaintiff had any knowledge of the precise position of the automobile with reference to the trolley car or relied upon it in any degree. The plaintiff was in a place of entire safety within the automobile. He voluntarily and without exigency moved into a danger zone by getting in...
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