Beirne v. Lawrence & Methuen Street Railway Co.

Losing, J. In the case at bar the plaintiff’s path, as she approached Bruce Street, lay through vacant land, and her view of a car coming from the north was and continued to be unobstructed from tbe time such a car was eight hundred and fifty feet north of the point where the accident took place until it reached that point. The car here in question was lighted by thirteen incandescent lights inside the car and one on the dashboard. The accident happened in the morning, while it was still dark, and although it was “ misty and cloudy,” it was not the case of a fog which interfered with seeing objects, as was the case, for example, in Barry v. Boston Elevated Railway, 194 Mass. 265. On the plaintiff’s own story it is plain that she was negligent in not seeing the car, and that her negligence contributed to the accident. The case is covered by Fitzgerald v. Boston Elevated Railway, 194 Mass. 242. Such a case can be disposed of in one of two ways. It can be said that of necessity either she did not look or that she looked carelessly when she did look. Or it can be said that, taking the time which she selected as the time to look, the car must have been in plain sight and she must have looked carelessly. In our opinion the former is the true point of view, and from that point of view the statement of the case is enough. But as we have said, the result is the same, whether the case is approached from the other point of view. The car must have been in plain sight at the time when the plaintiff says that she looked. It was visible eight hundred and fifty feet from the place of the accident. If the plaintiff was walking three miles an hour, it took her eleven and one third seconds to get to the point where the accident occurred, if she looked when she was fifty feet away, and thirteen and three fifth seconds if she looked when she was sixty feet away. To emerge from invisibility and run the intervening eight hundred and fifty feet during these eleven or thirteen and a half seconds the ear would have had to run at the rate of nearly forty-five or thirty-seven and one third [175] miles an hour. The highest speed of the car testified to was twenty-five miles an hour. The fact principally relied on by the plaintiff’s counsel in his argument was that the cars of the defendant railway had been equipped for about a year before the accident with a large carbon electric search light in front of a reflector on the front dasher, and that at the time of the accident the car in question had no such light, or, if it had, it was not lighted. But the plaintiff did not testify that she knew of this and knowing of it relied on it. On the contrary, all that she testified to on that point was that when she used to see the car in October (the month before the accident) “ they had a small light on it,” and that she supposed that the lights inside were lighted up then but could not say whether they were or were not. The case at the bar therefore is not a case where the plaintiff relied on the search light, and in this respect his case comes within Connolly v. New York & New England Railroad, 158 Mass. 8. The case at bar does not come within Evensen v. Lexington & Boston Street Railway, 187 Mass. 77. That also was the case of a brilliantly lighted car, although that fact does not appear in the report of the case. The plaintiff there made out a case for the jury on the issue of the accident not being caused by his contributory negligence, because he relied on one Helchier, who was driving the wagon in which the plaintiff was seated, and “ If the plaintiff’s testimony is to be believed, Helchier, at several points on Academy Lane, as he was approaching Sudbury Road, looked for the car; he was listening all the time and he heard no gong or whistle or anything else indicating the approach of a car; while at some points he could see two or three hundred feet up the track on Sudbury Road, his view was wholly obstructed at others; and as he came near the corner of the two streets and near the track the view was much obscured by overhanging trees, both upon the lane and upon the road.” pp. 78, 79. “ The evidence tended to show that a person travelling upon the lane could have only a very imperfect view up Sudbury Road, the view being entirely cut off at some points by houses and greatly obscured at others by overhanging trees located upon the south side of the lane and the west side of the road.” pp. 79, 80. In the case at bar the plaintiff’s view was unobstructed. [176] Neither does the case come within Beale v. Old Colony Street Railway, 196 Mass. 119. In that case the plaintiff was a boy seven years and six weeks old; he was following a tip-cart, and there were “ overhanging bushes, fences, trees and other obstructions to the view of the approaching car.” Exceptions overruled.