Scanlon v. Berkshire Street Railway Co. , 215 Mass. 554 ( 1913 )

Braley, J.

The exceptions to the admission of evidence having been waived, the defendant’s sole contention is, that there was no proof of the decedent’s due care. It appears that after the accident he never recovered consciousness, and his conduct must be determined from the recollection of eyewitnesses and the attendant circumstances. If the facts which the testimony would warrant the jury in finding are equally consistent with an inference of his due care, or of his negligence, nothing remains except mere conjecture, and the verdicts cannot be sustained. French v. Sabin, 202 Mass. 240. Taylor v. Pierce Bros. 213 Mass. 247.

A traveller on a public way, whether on foot or driving a team as in the case at bar, while required to act with reasonable prudence, has the right to rely to some extent on the assumption, that a motorman operating an electric car will take ordinary precautions at intersecting streets to avoid collisions. Hennessey v. Taylor, 189 Mass. 583. Horsman v. Brockton & Plymouth Street Railway, 205 Mass. 519. Nelson v. Old Colony Street Railway, 208 Mass. 159. Foster v. Boston Elevated Railway, 214 Mass. 61.

The jury could have found not only that the decedent was a careful teamster of large experience thoroughly familiar with the streets of the city, the regulation of traffic, and the operation of cars therein, but, as he came through the cross street with the team moving slowly, and passed over the cross walk, the car, from which the motorman had an unobstructed view of the track for a thousand feet, was being driven in violation of a city ordinance at an excessive rate of speed. As the decedent drove over the cross walk one of the plaintiff’s witnesses saw him look toward the approaching car, which then was not quite four hundred feet distant, although he did not look again until shortly before the collision, when the car struck the wagon after the horses had nearly if not quite gone over the track. It was a question for the jury under these conditions whether the decedent, who was not called upon to anticipate an unreasonable or unlawful rate of speed, saw the car when he first looked, and, judged by the conduct of the ordinarily prudent man similarly situated, was justified in proceeding, or whether he should have looked again, as well as whether he properly could rely upon the speed of the car being slackened in a street shown by the evidence to have been subjected constantly to a large amount of public travel. Jeddrey v. Boston & Northern Street Railway, 198 Mass. 232. Horsman v. Brockton & Plymouth Street Railway, 205 Mass. 519. O’Brien v. Lexington & Boston Street Railway, 205 Mass. 182, 184, 185. Farris v. Boston Elevated Railway, 210 Mass. 585.

The jury furthermore from their common experience properly could infer, under the circumstances, that the decedent did not intend deliberately to expose himself or his employer’s property to the chance of injury by attempting to pass in front of an oncoming car, if its proximity was such that a collision appeared to be unavoidable. Prince v. Lowell Electric Light Corp. 201 Mass. 276, 281, 282, and cases cited. Berry v. Newton & Boston Street Railway, 209 Mass. 100, 103.

The ruling requested was properly refused, and the exceptions must be overruled.

So ordered.