Birch v. Athol & Orange Street Railway Co.

Sheldon, J. If we assume that upon the evidence in this case the jury were warranted in finding negligence on the part of the defendant’s motorman, we are yet of opinion that a verdict ought to have been ordered for the defendant on the ground that the plaintiff’s own negligence contributed to the happening of the collision of which he complains. The jury might", to be sure, have found that it was reasonably necessary for him, in order to turn his automobile around, to back it upon the defendant’s tracks; and he testified that before doing this he looked up the street to the rear to see if there was anything in the way, and saw nothing. But it was undisputed that the distance from the place where his automobile was standing to the electric car station in the square was a little over one hundred feet; that there was nothing to obstruct his view to the rear, either when he started his automobile back or while it was backing; and that the electric car stopped at the square as usual to take on passengers. He expected an electric car to pass there at about that time; and after starting backward he did not look around to see where the car was. He had no lights on his automobile, although it was dusk. The car must have been in plain [259] sight when he began to back his automobile in a semicircular path towards and upon the defendant’s tracks; and it is impossible to avoid the conclusion that with any care in looking he must have seen the car. As was said in Fitzgerald v. Boston Elevated Street Railway, 194 Mass. 242, if he looked and did not see the car, “ he must have looked carelessly and is in no better position than if he had not looked at all.” The case is not like LeBaron v. Old Colony Street Railway, 197 Mass. 289, in which it was merely difficult, but not impossible, to see how the plaintiff could have looked and listened and yet have failed to see the car; and the rule of that case is not applicable. Nor, even if it appeared that the plaintiff had looked carefully and that the defendant’s car had not then been in sight, but had come up later, could it be said to have been proper care for the plaintiff to run his automobile backward, in the main street and square of so large a town as Orange, upon an electric car track, without looking after he had started, especially when he expected a car to come. This was certainly as negligent as the conduct of a foot traveller, or of the driver of an ordinary wagon, who, without carefully looking, goes in front of an electric car upon a crowded street. Stackpole v. Boston Elevated Railway, 193 Mass. 562. Blackwell v. Old Colony Street Railway, 193 Mass. 222. Bartlett v. Worcester Consolidated Street Railway, 189 Mass. 360. Saltman v. Boston Elevated Railway, 187 Mass. 243. Seele v. Boston & Northern Street Railway, 187 Mass. 248. Dunn v. Old Colony Street Railway, 186 Mass. 316. Hurley v. West End Street Railway, 180 Mass. 370. In all these cases the plaintiff was either going in the same direction as the car, or directly crossing the tracks; and yet a verdict was directed for the defendant. That this plaintiff was backing upon the tracks only makes the case stronger against him. Exceptions sustained.