Duffy v. United Electric Railways Co.

CAPOTOSTO, J.

Collision between a truck and a street car at .the Six Corners in East Providence at about 4 A. M. of July 18, 1931. The jury found for the plaintiff in the sum of $250. The defendant moves for a new trial.

The plaintiff, proceeding west along Taunton Avenue with a large produce track .headed for Providence, had to pass over ithe single tracks of the defendant which cross the open area of the Six Corners from South to North Broadway. A street car headed north, tailing help to their destination, stopped at the southwest corner to throw a switch in order that it might proceed across the square. In other words, the two vehicles were practically at right angles to each other, the street car being to the truck's left and both headed towards a point where, if each proceeded without consideration for the other, a collision could reasonably be apprehended. It is some 88 feet from the corner of Taunton Avenue to the point of collision, and about 84 feet from this place to the switch. Both vehicles had their lights on and no other traffic was on the highways.

For plaintiff: Hinckley, Allen, Till-inghast & Wheeler. For defendant: Clifford, Whipple, Frank McGee.

The plaintiff testified that when he was some 12 or 15 feet back from the corner of Taunton Avenue as it enters the square, he noticed the electric car stopped at the switch; that he kept on going and paid no more attention to the car until he was 12 to 15 feet from the nearest rail, when he saw the car for the second time and appreciated that an accident was unavoidable. The speed of the truck was given as about 15 miles per hour. The plaintiff said that at the speed he was going, he could stop in about 12 feet.

The defendant’s motorman testified that he did not see the truck until he saw it crossing the tracks in front of him. The testimony is quite clear that he was proceeding at a very moderate rate of speed.

Even if we grant that the operator of the car was negligent, this Court ■believes that the plaintiff is not entitled to recover. The driver of the truck had no right to assume that a street car, which is stopped when he is some 90 to 100 feet away from the nearest rail of a street railway track which he intends to cross, will remain stationary or assure him safe crossing With this condition in mind, especially as there were no other traffic complications, it was his duty for his own protection to look 'along the tracks of the street railway as he approached closer to the rails and before he passed from a position of safety to one of actual or potential danger. When a plaintiff’s negligence is as late or later than itlbat of the defendant, then his negligence is the real proximate cause of the accident.

The Court can not sustain the jury’s Verdict.

Motion for new trial granted.