Citation Numbers: 277 Mass. 291
Judges: Sanderson
Filed Date: 12/1/1931
Status: Precedential
Modified Date: 6/25/2022
This is an action of tort to recover for conscious suffering and death of the plaintiff’s intestate, resulting from a collision between a street car of the defendant and an automobile in which the deceased was riding as a guest. The only contention now made by the defendant is that there was no evidence of its negligence and that for that reason the trial judge erred in denying its motion for a directed verdict.
The accident occurred at about eleven o’clock in the evening on October 19, 1927, upon the Salem Turnpike, so called. The atmosphere was foggy and misty and the road surface wet. The concrete part of the road was nineteen and one half feet wide with a gravel shoulder on either side three feet three inches wide. Upon one side of the street and within the limits of the highway was the single track of the defendant company; the top of the rail was flush with the surface of the street, but there was a drop of five inches to the crushed stones between the ties. There were no street lights on the road at the place of the accident. The street car was going in the direction of Lawrence and the automobile toward Salem. The accident occurred about fifty feet on the Lawrence side of Chestnut Street where there is a slight grade down toward Lawrence. The operator of the automobile testified that it had been moving at a speed of ten or fifteen miles an hour and that as he approached the point of the accident he saw a headlight, practically ahead of him, a distance of one hundred to one hundred fifty yards away; that he was travelling on his right hand side of the road without reference to
The defendant’s motorman testified that he noticed the headlights of the automobile when it appeared to be one hundred' or one hundred fifty yards away; that the power was shut off and the car was coasting; that the automobile when first seen was on its right hand side of the road not very far from the track, perhaps four or five feet from the rail; that he did not watch the automobile particularly as it approached. He also testified that from the time he saw the two headlights he was watching them as they approached; that prior to the accident his car was travelling at a speed of about twenty-five miles an hour and there was no increase in speed up to the time of the collision; that when the automobile was thirty or forty feet from him it turned into the track and he immediately applied the emergency brake and started to put on sand — there was nothing else he could then do to stop the car — but at that moment, seeing the crash coming, he stepped
The testimony of the driver of the automobile as to the speed of the street car was some evidence of that speed, notwithstanding his previous inconsistent statements and the difficulty a person would have in making anything like an accurate estimate of speed under the conditions described by the witness. Upon his testimony the jury could have found that he was near the track before the wheels went down between the rails, because he saw the street car headlight practically ahead of him on a straight street and he veered but slightly to the right before the right front wheel of the automobile dropped over the rail. This evidence brings the case within the principle stated in Austin v. Eastern Massachusetts Street Railway, 269 Mass. 420, where the court said the jury could have found that the motorman should have seen the automobile in such close proximity to the rail and should have slowed down and stopped before the accident occurred. Lawrence v. Fitchburg & Leominster Street Railway. 201 Mass. 489. Pendleton v. Boston Ele
The case is distinguishable from cases like Kupiec v. Warren, Brookfield & Spencer Street Railway, 196 Mass. 463, and Johnson v. J. M. Guffey Petroleum Co. 197 Mass. 302, where, the defendants having been free from blame with reference to a danger which there was no reason to apprehend until a point was reached where an accident could not be avoided, they were held to be not negligent.
Exceptions overruled.