Galbraith v. West End Street Railway Co.

Lathrop, J. This is an action of tort, under the St. of 1886, c. 140, by the administratrix of the estate of James Galbraith, to recover damages for the death of her husband, caused by injuries received by him on February 6, 1894, while attempting to cross the tracks of the defendant’s railway, on [580] Main Street in Cambridge. Just before the accident, the intestate was driving along First Street in his cart. He drove out of First Street, which does not cross Main Street, but, for the purpose of getting on the right hand side of Main Street, he proceeded straight ahead to cross Main Street. In the Superior Court, the jury returned a verdict fbr the defendant, and the case comes before us on exceptions taken by the plaintiff to the refusal of the presiding judge to give certain requests for instructions, and there are also exceptions to certain portions of the charge. The judge gave the first and eighth requests for instructions, and refused to give the second, third, fourth, fifth, sixth, and seventh. The second request was properly refused. The plaintiff, in his argument, has assumed that this request placed the parties in a condition where the intestate was on the track, in the act of crossing; but this is not stated in the request, and in fact the terms of the request show that it was intended to apply to a time before the intestate got upon the track. There was conflicting evidence in the case as to the speed with which the electric car was coming, and as to what was done by the motorman, and the jury were fully instructed upon this branch of the case. The third request was properly refused. It was incumbent upon the plaintiff, under the St. of 1886, c. 140, to show that her intestate was in the exercise of “ due diligence.” While the intestate had a right to cross the street, the electric car had also a right to proceed on its course; but both were bound to use proper care to avoid a collision. Driscoll v. West End Street Railway, 159 Mass. 142. Glazebrook v. West End Street Railway, 160 Mass. 239. The defendant corporation is not liable for the act of the motorman, unless he was either unfit or there was gross negligence or carelessness on his part. There was no evidence that the motorman was unfit, and it was a question for the jury whether the intestate exercised due diligence, and whether the motorman was grossly negligent or careless. The fourth request was rightly refused, and the law on this point was correctly stated in the instructions given to the jury. The fifth, sixth, and seventh requests relate to the term “gross negligence.” The plaintiff contends that the word [581] “ gross ” has no more effect than the word “ due ” or “ ordinary.” But while this view has been adopted in some jurisdictions, it never has been the law here. The term “ gross negligence” means something more than a want of ordinary care. It is used not only in the St. of 1886, c. 140, but also in the Pub. Sts. c. 73, § 6; c. 112, § 212; c. 202, § 34. See Copley v. New Haven & Northampton Co. 136 Mass. 6; Debbins v. Old Colony Railroad, 154 Mass. 402, 404; Sullivan v. New York, New Haven, & Hartford Railroad, 154 Mass. 524; Manley v. Boston & Maine Railroad, 159 Mass. 493; Mullen v. Springfield Street Railway, 164 Mass. 450. The remaining exceptions relate to specific portions of the charge. The plaintiff contends that the jury might have been misled by what was said in regard to railroads and steam cars. But we do not understand that the judge intended to instruct the jury that electric cars might run at the same rate of speed as cars on a road operated by steam. See Doyle v. West End Street Railway, 161 Mass. 533. The jury were carefully instructed that they were to inquire whether this car, at and before the time of the collision, was moving at an excessive rate of speed, in view of the situation; and they were told to take into consideration the character of the street, whether there were dwellings along the line of it, whether other streets crossed Main Street or came into it; to determine upon all the evidence what the rate of speed was, and whether it was an excessive rate of speed, and whether the motorman was or was not in fault in not checking the speed of his car; by which we presume the. judge meant in not checking it sooner, for there is no doubt that it was checked to some extent. The last exception relates to what was said as to the right of the intestate to cross Main Street. We have already stated, in considering the third request for instructions, that this right was not absolute; and we see no objection to that portion of the charge which left to the jury the question whether the intestate was in the exercise of reasonable care in not turning to the left as soon as he reached Main Street, rather than to attempt to cross the tracks when a car was coming. It was correctly said that “ a man has the right, under the law in this Commonwealth, to drive upon either side of the street, or any part of [582] the street, excepting only that, in case of vehicles meeting, when a man who is driving meets a carriage going in the same direction or going in the other direction, then the law provides what he shall do ”; and also in what follows this. We are, therefore, of opinion that the plaintiff has shown no ground of objection, and that the exceptions must be Overruled.