Witherington v. Lynn & B.R. Co.
| Decision Date | 25 February 1903 |
| Citation | 182 Mass. 596,66 N.E. 206 |
| Parties | WITHERINGTON v. LYNN & B. R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John
E. Hannigan, for plaintiff.
H. F Hurlburt and Damon E. Hall, for defendant.
At the close of the evidence the plaintiff conceded that the action could not be maintained unless there was a gross negligence on the part of the motorman or conductor. As to this, it appeared that the car was a long, open, double-truck car having a partition at each end. Of the two rear seats as the car was going, one faced the rear dasher; and the other being upon the other side of the partition, faced to the front. The extreme left end of this seat was occupied by the plaintiff's intestate, and the only other person upon the seat was a woman, who sat at the opposite end of it. There were a number of unoccupied seats in the car, and there was no evidence that any passenger was standing. There was no trouble with the car or the track. The plan used at the trial and at the argument before us shows that at or near the place of the accident there was a decline in the road of about 2 feet in 100, and a long, easy curve in the street and the track. The evidence as to the rate of speed at which the car was going was not very satisfactory, but it tended to show that the car might have been going at the rate of 16 miles an hour. There was no evidence of any jolt or jar, and two of the witnesses called by the plaintiff testified that at the time of the accident the car was running smoothly. There is no evidence that there was any other vehicle upon the road, and it is not argued by the plaintiff that there was any danger of collision. The accident occurred at about 8 o'clock p. m., August 8, 1899, and 'it was getting towards dark.' The evidence tended to show that while the car was thus moving, under these circumstances, the conductor asked the plaintiff's intestate for the fare, and that thereupon the latter rose, and, standing near the edge of the side of the car, put his hand in his righthand trousers pocket, as if to get the money, and while doing this he leaned a little 'to the left and backwards,' and his body left the car, striking the ground with such force as to cause fatal injury.
The plaintiff contends that the gross negligence consisted in allowing the car to go at an unusual and dangerous rate of speed, or in not warning the deceased of the danger. W...
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