Daris v. Middlesex & Boston Street Railway Co. , 241 Mass. 580 ( 1922 )

Rugg, C.J.

This is an action of tort to recover compensation for personal injuries and for damage to property sustained at about nine o’clock in the forenoon of December 5, 1917, by the plaintiff’s intestate through collision between an automobile, which he was driving, with a trolley car of the defendant. The collision occurred at the junction of two public ways, Boden Lane and West Central Street. The automobile was being driven on Boden Lane, on a descending grade toward West Central Street. On the side of that street the defendant maintained two tracks. A trolley car was coming on the track nearer Boden Lane. Without narrating the evidence in detail, it is enough to say that there was some evidence tending to show that the view of one driving down the lane was somewhat obscured in the direction from which the trolley car was approaching, by a pine tree, a bill board, a pile of sleepers of considerable length, and at one point by an undergrowth of bushes and small pines.

The plaintiff’s intestate did not testify, having died before the trial. His contributory negligence was an affirmative defence, the burden of proving which rested on the defendant. G. L. c. 231, § 85. Duggan v. Bay State Street Railway, 230 Mass. 370. Mercier v. Union Street Railway, 230 Mass. 397. Although this was a close question of fact, it still was a question of fact. It could not have been ruled as matter of law that this defence had been made out. Whether in the exercise of due care he ought to have seen the approaching car notwithstanding the obstructions to vision, was for the jury.

There was evidence that the automobile was being driven as to speed and control contrary to the provisions of St. 1909, c. 534, §§ 14, 16, as amended (see now G. L. c. 90, §§ 14, 17). If this violation of law contributed to tne injury, recovery would be barred. Newton v. McSweeney, 225 Mass. 402. Whether it did so contribute was a question of fact and could not have been ruled as matter of law. Bourne v. Whitman, 209 Mass. 155. Todd v. Traders & Mechanics Ins. Co. 230 Mass. 595, 598. Walters v. Davis, 237 Mass. 206, 209.

Whether the motorman of the defendant’s car was negligent also was a question of fact. He approached the junction of two streets with the obstructions such as they were at full speed and without sounding a whistle or bell or giving other warning.

The case at bar falls within the general rule that when collisions occur at intersecting streets between trolley cars and automobiles the issues of due care and negligence of the respective drivers present questions of fact for the jury. Halloran v. Worcester Consolidated Street Railway, 192 Mass. 104. Foster v. Boston Elevated Railway, 214 Mass. 61. Salisbury v. Boston Elevated Railway, 239 Mass. 430.

Exceptions sustained.