Barry v. Boston Elevated Railway Co.

Loring, J. The plaintiff in this case was a motorman in the employment of the defendant. He was injured by a collision between his car and another car of the defendant going in opposite directions on a single track. The plaintiff had been in the defendant’s employ for fifteen months, and had been furnished with a book of rules which it was his duty to read and which he testified that he had read. On the morning in question, October 30, 1901, he left Arlington Centre for Sullivan Square, Boston, and return, the whole being an hour’s trip. When five minutes away from the terminus in Arlington Centre there is a single track for four hundred yards, with a turnout three hundred yards from the Boston end of the single track, leaving one hundred yards between the turnout and the Arlington end of the single track. For about three hundred and fifty yards from the Boston end of the single track, that is to say, to a point fifty yards short of the turnout, there is a slight up grade. A car coming from Boston is hidden from a car on the turnout by the hill just described and by a curve at that point until the Boston car is fifty yards away from the turnout. The plaintiff’s car was due at Arlington at 6.43. It was 6.46, or between 6.45 and 6.46, when the plaintiff’s car was a car length short of the Boston end of the single track, that is to say, it was then three minutes later than the hour it was due at Arlington, a run of five minutes. In other words, it was then eight minutes late. There was an inward bound car due to leave Arlington at 6.43. That car was due at the turnout at 6.47. It was a minute’s run from the Boston end of the single track to the turnout after getting straightened out from slowing down to cross on to the single track. The fourteenth rule in the defendant’s rule book is in these words: “ Inward cars have the right [267] of way and every precaution must be taken to know that the track is clear before leaving turnouts. The utmost care and judgment must be used in the operation of cars on single track. Extra cars are liable to be met at any time and the danger of collision in the night or during fog or storms must always be borne in mind. Always take the safe course.” It was in fact the custom for the inward bound car to leave the turnout and enter on the single track unless the outward bound car was in fact in sight. The morning in question was foggy. The plaintiff testified that when he reached the Boston end of the single track you could see three or four car lengths away. The rails were slippery. The evidence was conflicting as to there being leaves on the tracks. It does not appear how light it was, but it does appear that the lights were lighted. The plaintiff looked at his watch just before entering the single track, and finding that it was 6.46, or between 6.45 and 6.46, he entered on that track and ran at six to seven miles an hour for some fifty or seventy-five yards, when the other car loomed up out of the fog some three or four car lengths away. He put on the brakes; they did not hold; thereupon he let them off and put on the reverse lever; that did not stop his car, the two cars came into collision, and the plaintiff suffered the injuries here complained of. There was evidence as to the negligence of the defendant which we do not find it necessary to state, as in our opinion the plaintiff as matter of law was negligent and his negligence contributed to the injury. The running time from the Boston end of the single track to the turnout, a distance of three hundred yards, is stated in the evidence to be one minute. To run that distance in that time requires a speed of nearly ten miles an hour. To get to the turnout before the inward bound car left it (if that car was on time), the plaintiff had to run on substantially schedule time, namely, about ten miles an hour." He ran his car at the rate of six or seven miles an hour only. Doubtless under the circumstances he was right in not going faster. The day was so foggy that he could see ahead three or four car lengths only, and the rails were slippery. But the fact that under the circumstances he could not run with safety at the rate necessary to reach the turnout in [268] safety, shows that he ought not to have entered on the single track at all. Exceptions overruled.