Driscoll v. West End Street Railway Co.

Field, C. J. Street railway companies are not subject to the provisions of Pub. Sts. c. 93. By Pub. Sts. c. 113, § 37, whoever maliciously delays or obstructs the passing of the cars on the tracks of such a company is to be punished; and by § 38 the company is to be punished if it wilfully or negligently obstructs the passing of carriages over a street or highway. Street railway companies, under the decision of Commonwealth v. Temple, 14 Gray, 69, in running their .cars, have certain rights in the streets different from those which belong to the drivers of ordinary vehicles, but none of these rights is directly involved in the case at bar, although it may perhaps be a fact to be considered that the plaintiff’s wagon could proceed in any direction along the streets, while the defendant’s car must proceed, if at all, on the line of its tracks. The drivers and conductors of street railway cars, whatever the motive power, have in general the same rights and duties with reference to other 146 vehicles crossing their course that the drivers of omnibuses have, for example, or that the driver of any other vehicle has. O'Neil v. Dry Dock, East Broadway, & Battery Railroad, 129 N. Y. 125. In Commonwealth v. Temple, 14 Gray, 69, 75, it is said: “ Where the entire public, each according to his own exigencies, has a right to the use of the highway, in the absence of any special regulation by law, the right of each is equal. . . . Each may use it to his own best advantage, but with a just regard to the like right of others. Persons in light carriages, for the conveyance of persons only, have occasion, and of course a right, when not expressly limited by law, to travel at a high rate of speed, so that they do not endanger others. But all foot passengers, including aged persons, women, and children, have an equal right to cross the streets; and all drivers of teams and carriages are bound to respect their rights, and regulate their own speed and movements in such a manner as not to violate the rights of such passengers. So in regard to the drivers of fast and slow carriages, each must respect the rights of the other.” In Garrigan v. Berry, 12 Allen, 84, it is said: “ There being no statute regulating the manner in which persons should drive when they meet at the junction of two streets, the rule of the common law applies, and each person is to use due and reasonable care, adapted to the circumstances and place.” See Norris v. Saxton, 158 Mass. 46. The plaintiff cannot recover if he was guilty of negligence which contributed to the collision, although the defendant’s servants were negligent. Each party is bound to exercise due care. Parker v. Adams, 12 Met. 415. What each ought to do when a collision may reasonably be anticipated as possible or probable, if each continues to go on as he is going, is usually a practical question eminently fit for a jury to determine. Schienfeldt v. Norris, 115 Mass. 17. Wrinn v. Jones, 111 Mass. 360. In the present case, we think the questions of due care on the part both of the plaintiff and of the defendant’s servants were for the jury. One circumstance to be considered is, that the plaintiff’s horses were across the defendant’s track at the time his wagon was hit. When two vehicles are proceeding at reasonable rates of speed on converging lines, and the question arises as to which should give way, one circumstance to be considered is, which, according to the rates of speed they are going, 147 will first reach the point where the lines of travel cross each other. The plaintiff’s testimony is that the car was nearly four hundred feet from him when he proceeded to cross Hanover Street diagonally to Elm Street. It seems to have been daylight, and although it does not appear when the driver of the car first saw the plaintiff, no reason appears why he should not have seen him long before he applied the brakes. The evidence was that he put on the brakes five or ten seconds before the collision, or when the front of the car was about twenty feet from the plaintiff. It was the duty of the driver of the car to keep a reasonable lookout for teams coming from cross streets, and reasonable control of his car, so as to avoid collisions, and we think that there was evidence for the jury that this was not done. Neither can we say that there was not evidence for the jury that the plaintiff was in the exercise of due care. Apparently, if the speed of the car had been seasonably checked, the collision would have been avoided, and the danger was not immediate when the plaintiff undertook to cross the tracks. See Kerrigan v. West End Street Railway, 158 Mass. 305. Exceptions sustained.