Scannell v. Boston Elevated Railway Co.

Lathrop, J. The plaintiffs, while driving in a heavily loaded wagon, drawn by one horse, attempted to cross Cambridge Street in Boston, when an electric car of the defendant was coming towards them. A collision resulted, and the ques [172] tians for the jury were whether the plaintiffs were in the exercise of due care, and whether the defendant’s servant, the motorman, was negligent. The evidence was conflicting, and no question is made that the case was not one for the jury. The defendant asked for twenty-five instructions, which were not given in the form requested, or except as contained in the charge. At the argument before us, the defendant insisted upon only four of these requests, namely, the eighth, eleventh, twenty-first, and twenty-fifth. We proceed to consider these. In support of the eighth request the defendant contends that the plaintiff in the first case was aware, before he turned to cross the tracks, that the defendant’s ear was approaching, and that it was running very fast. Hence it is said that he exposed himself to an obvious danger. Reference is made to the cross-examination of this plaintiff. We do not so understand his testimony. He testified on cross-examination that, when he started to turn, the car was “ just west of the corner of Anderson Street; that he did not know whether it had stopped at the corner or not; that he should judge it was moving; that he could not say how fast it was then going; that when the car was about at Doherty’s liquor store it was going very fast; and that the seat on which he was sitting was then over the space between the two lines of track.” The exceptions state that the distance between Anderson Street and North Grove Street is one hundred and ninety-eight feet; and that the liquor store referred to is about opposite Strong Place, which is about half way between Anderson Street and North Grove Street. The exceptions also state that there was nothing to impede the view of both the motorman and the plaintiffs as they approached each other. The theory of the defendant is not supported by the evidence; and the eighth request was properly refused. These remarks dispose also of the twenty-first and twenty-fifth requests. The eleventh request asks for a ruling that the driver of a wagon on a street where electric cars run must use more care than when he drives on a street where they do not run. Care is, of course, a relative term. It may mean one thing on a country road, and another thing in a crowded street of a city. Hence, juries are generally instructed that the care required of [173] a plaintiff or a defendant is that care which a reasonably prudent person would exercise under like circumstances; and so the jury were instructed in this case, both as to the care required of the plaintiff and that required of the defendant. The situation was clearly pointed out to the jury; and we are of opinion that the judge was not bound to give the instruction requested. With some exceptions, pointed out in Driscoll v. West End Street Railway, 159 Mass. 142, 145, and which are not material to this case, the defendant stands in respect to the use of the street on exactly the same footing as the driver of any other vehicle. Each is bound to use due care to avoid coming in contact with the other, and neither is’ entitled to assume that the other will keep out of his way. Driscoll v. West End Street Railway, ubi supra. Benjamin v. Holyoke Street Railway, 160 Mass. 3. Ellis v. Lynn Boston Railroad, 160 Mass. 341. Robbins v. Springfield Street Railway, 165 Mass. 30, 36. Galbraith v. West End Street Railway, 165 Mass. 572. White v. Worcester Consolidated Street Railway, 167 Mass. 43. Oliver v. North End Street Railway, 170 Mass. 222. To affect the credibility of the plaintiff Scannell, who testified as a witness, the defendant was allowed, against the plaintiffs’ objection, to put in evidence the record of his conviction in the Circuit Court of the United States, in 1878, for fraudulently violating a registered trade-mark. It is provided by the Pub. Sts. c. 169, § 19, “ The conviction of a witness of a crime may be shown to affect his credibility.” The statute under which Scannell was convicted was shortly afterwards declared to be unconstitutional. The Trade-Mark Cases, 100 U. S. 82. This fact was not called to the attention of the court until the day after the evidence was admitted. The judge instructed the jury that the effect of the conviction was for them, and that the fact that the statute had been declared unconstitutional could be taken into consideration. We are of opinion that the defendant had no ground of exception to this portion of the charge. If the statute was unconstitutional there could be no crime committed. All that Scannell was convicted of was the doing of certain acts which Congress had attempted to make a crime, without having the legal power to do so. Exceptions overruled.