Doyle v. West End Street Railway Co.

Lathrop, J. Under the instructions of the court, the jury must have found either that the plaintiff was not in the exercise of due care, or that the defendant was not guilty of negligen.ee. The second and third requests for instructions were properly refused. In effect, the presiding justice was asked to rule that certain supposed facts would of themselves amount to an “ appearance of danger ” within the meaning of the regulation of the board of aldermen, and that it was then the duty of the driver to stop his car, if possible, and if he failed so to do, and such failure caused the injury, the defendant • was negligent. But the facts supposed did not of themselves alone amount to an “ appearance of danger.” What is an “ appearance of danger” depends upon all the attendant circumstances, and usually must be left to the jury. In this case, the court could not rule that on all the facts there was an “ appear [542] anee of danger,” nor that the facts supposed in the requests, taken by themselves alone, necessarily constituted an appearance of danger. We find no error in the instructions given of which the plaintiff has the right to complain. The principal objection of the plaintiff is to the reference made by the presiding judge to the case of Chisholm v. Old Colony Railroad, 159 Mass. 3. The judge referred to the case as “ instructive,” and as “ applicable in part,” and not as conclusive of the question before the jury. The jury were not instructed that the same rule applied to a railroad operated by steam, and to one running in a city and operated by electricity. The remark of the judge that “to some extent it is undoubtedly true that a motorman would have the right to assume that a person who was in the position of danger would withdraw from it, that he would hear the gong as sounded, and would take some other position,” we have no doubt is a correct exposition of the law. To what extent he would have the right to assume this was left to the jury. And they were further instructed that, “ if the motorman, had he been careful himself, should have seen that there was the appearance of danger, it was then his duty to stop the car as speedily as possible, and if he did not stop the car as speedily as possible, and because of the failure to stop it the plaintiff was injured, while the plaintiff was himself in the exercise of due care, the plaintiff is entitled to a verdict.” Exceptions overruled.