Connolly v. Boston Elevated Railway Co. , 236 Mass. 173 ( 1920 )

Crosby, J.

These are two actions of tort, the first to recover for personal injuries, the second for damage to property. The plaintiff Connolly was injured while travelling with a horse' and wagon belonging to his employer, Solomon, by reason of a collision of the wagon and an electric car of the defendant at the intersection of Warren and Maywood streets, in the city of Boston.

Warren Street at the place of the accident runs in a northerly and southerly direction, and on it were two tracks of the defendant; from the easterly side it is entered by Maywood Street at a steep descending grade. The plaintiff Connolly (who will hereafter be referred to as the plaintiff) drove out of Maywood Street, and his wagon was struck by a north bound car; the tracks at this point are down hill in the direction in which the car was travelling. The plaintiff testified that as he drove down May-wood Street the horse was going at an ordinary trot; that he stopped at the corner of the street and "looked out saw'the car forty paces away from . . . £himj forty feet. The horse was already on the track and . . . £he] thought . . . £he3 could push . . . £his3 way across by the time;” that when the horse got to the trade he could not back the team because of the steep grade up Maywood Street; and that the car struck the front wheels of the wagon.

The evidence of the plaintiff is to the effect that he thought he had time to cross the track. It cannot be said as matter of law that his judgment was reckless or that he attempted to cross without any regard for his safety. Jeddrey v. Boston & Northern Street Railway, 198 Mass. 232. Farris v. Boston Elevated Railway, 210 Mass. 585.

Although a plan seems to have been referred to and testimony received with reference to it at the trial, it is not before us, and it does not appear from the record whether the plaintiff could have seen the approaching car before his horse reached the track or whether his view was obstructed, on what part of Warren Street the tracks were laid, nor what the distance was from the easterly line of Warren Street to the inbound track. In these circumstances, it cannot be held as matter of law that the plaintiff should have looked for a car before his horse reached the track; nor that if he had so looked, he could have known of its approach. These were questions of fact for the determination of the jury upon the evidence before them. Horsman v. Brockton & Plymouth Street Railway, 205 Mass. 519. Driscoll v. Boston Elevated Railway, 223 Mass. 533. Davis v. Worcester Consolidated Street Railway, 234 Mass. 297.

There was evidence that the car was running down grade at the time of the accident at a speed of twenty miles an horn, and that no bell was sounded or other warning given as it approached Maywood Street, as called for by the defendant’s rules; upon this evidence the jury could have found that the motorman was negligent in operating his car at an excessive and unreasonable rate of speed at that time and place, and was negligent in failing to give the signals required.

The general rule where a collision occurs between an electric car and a team at intersecting streets is to leave the questions of due care on the part of the plaintiff and of negligence on the part of the motorman to the jury. There seems to be no reason why that rule should not apply in the case at bar. Halloran v. Worcester Consolidated Street Railway, 192 Mass. 104. Farris v. Boston Elevated Railway, supra.

The case is distinguishable in its facts from Hurley v. West End Street Railway, 180 Mass. 370, and Ferguson v. Old Colony Street Railway, 204 Mass. 340, relied on by the defendant.

In accordance with the report, judgment is to be entered for the plaintiff in the first case, for $300; and for the plaintiff in the second case, for $100.

So ordered.