Larkin v. Boston Elevated Railway Co.

Sanderson, J.

As the plaintiff was driving an open truck on the right hand side of Washington Street, in Dorchester, going toward Boston, he put out his hand to indicate his intention to pass an automobile parked at the curb from ten to fifteen feet ahead of him. In turning, he ran six or eight inches onto the track of the defendant and one of its cars collided with the rear left side of the truck when it was abreast the parked automobile. The street was straight for five hundred feet or more. When the truck started to turn out the distance between it and the car was eight or ten feet, at which time the parked automobile was six or seven feet from the truck. The evidence does not disclose how near the car was to the truck when the plaintiff put out his hand. The car travelled not over five feet after the collision; the truck was driven ahead thirty or forty feet before it stopped, but, whether wholly upon its own power or in part from the force of the impact, did not appear. The plaintiff and witnesses called by him testified that they heard no bell rung on the electric car. One witness described what he saw in the following language: “ . . . as he [the plaintiff] swung out he got over maybe six or eight inches on the Elevated tracks to clear the obstruction in front of him and before I could say That’ he got a smash.” The plaintiff testified that he did not look to see if a car was coming before he turned out, and that there was nothing to prevent him from seeing it if he had looked. The defendant offered no evidence.

The place and time of impact tend to prove that the truck was struck before it was squarely on the track. No evidence was offered as to the speed of the truck. The necessary inference from the fact that the car stopped not over five feet from the point of collision is, that it was moving slowly; and there was no evidence that the motorman did not have, it under control or was inattentive to his duty. The only warning he had before the truck started to turn toward the tracks was while it was travelling not less than three, or more than nine, feet. He could not be expected to sound his gong until he knew, or should have anticipated, that the plaintiff would leave his course to go upon the tracks. The evidence in the light most favorable to the plaintiff does not justify the inference that, after the first notice of the plaintiff’s intention, the defendant in the exercise of reasonable care could have avoided the accident either by giving a signal' or in any other way. Glennon v. Boston Elevated Railway, 251 Mass. 103. Donahue v. Boston & Northern Street Railway, 222 Mass. 233. Kelley v. Boston & Northern Street Railway, 223 Mass. 449. O’Donnell v. Bay State Street Railway, 226 Mass. 418. Boyle v. Worcester Consolidated Street Railway, 231 Mass. 184.

The conclusion reached on the issue of the defendant’s negligence makes it unnecessary to consider the question; of the plaintiff’s due care.

Exceptions sustained.

Judgment for the defendant.