Miller v. Boston & Northern Street Railway Co.

Knowlton, .0. J. The first question in the case is whether there was evidence of negligence on the part of the defendant. There was much testimony that the road was in bad condition on each side of the defendant’s tracks, that the snow was deep and difficult to pass over, that in some places there were large lumps of frozen snow, and that in others there was a high bank, sloping steeply down at the side of the road. According to the weight of the testimony the difficulty of passing at the sides of the tracks was so great that nearly all teams drove along the tracks, leaving the snow on each side without a regular path. For the changes in the condition of the snow from the condition that would have resulted from the storms alone, the jury might well find that the defendant was chiefly responsible, as it had frequently thrown out snow, and run snow plows over the tracks. There was much evidence tending to show that the winter was unusually severe, that the snow storms were frequent and the cold nearly continuous, making it very difficult to keep the roads safe. The jury might well have found that the defendant did all that it reasonably could be expected to do. But there was a variety of testimony to show that conditions were bad near the place of the accident, and we think it was a question of fact whether they were due in any degree to the negligence of the defendant. There was evidence to warrant a finding that, by reason of the bad condition of the road at the sides, the driver of the sleigh was not negligent in driving on the track, and that his driving there, taken in connection with the condition of the snow at the switch, was the direct and proximate cause of the accident. The fact that the plaintiff did not receive her injury immediately when the runner of the sleigh caught in the switch, but a few seconds or perhaps a minute or two afterwards, when the horse had escaped under the excitement of the collision and the attempt to extricate the runner of the sleigh, does not prevent a finding that the condition of the snow was the direct cause of the injury. McDonald v. Snelling, 14 Allen, 290. Marble v. Worcester, 4 Gray, 395. Bowes v. Boston, 155 Mass. 344. Davis v. Longmeadow, 169 Mass. 551. The fourth request for a ruling was rightly refused. The instructions given on this point were correct and sufficient. [540] They followed closely the doctrine fully stated and explained in Shultz v. Old Colony Street Railway, 193 Mass. 309. The eighth ruling requested could not properly be given, and the exception to the refusal to give it is waived by the defendant. Exceptions overruled.