McGourty v. DeMarco

Sheldon, J. 1. The judge rightly refused to order a verdict for the defendant. The jury were not bound to believe the testimony offered for the defendant that the car stopped suddenly with a jerk, although this was uncontradicted. Lindenbaum v. 60 New York, New Haven, & Hartford Railroad, 197 Mass. 314, 323. They might have found that due care required the driver of the defendant’s team, when he noticed that the car was slackening its speed, to anticipate the possibility of its coming to a stop and of passengers alighting, and that he failed to exercise proper care in view of this possibility. And, although the question undoubtedly was close, they might find that the plaintiff McGourty was himself in the exercise of due care. He testified that he looked to the rear of the car before leaving his seat. There is no absolute rule of law which required him to look up and down the street before actually alighting. Hennessey v. Taylor, 189 Mass. 583. Murphy v. Armstrong Transfer Co. 167 Mass. 199. Bowser v. Wellington, 126 Mass. 391. Moreover, he had the right to expect that any one driving up from behind the car would exercise proper care to avoid running into a passenger leaving the car. If the defendant was, as his counsel assumed in their brief, and as the jury certainly might find, attempting to pass the car from behind on his right hand in violation of R. L. c. 54, § 2, the jury might find that this, under the circumstances, was negligence on the driver’s part such as McGourty was not called upon to anticipate. Perlstein v. American Express Co. 177 Mass. 530. The whole question was for the jury. 2. Nor could the second instruction asked for by the defendant have been given. It was for the jury to say what the defendant’s driver ought to have expected as to the place where the street car might stop, and what precautions he ought under the circumstances to have taken in driving his own team. Indeed, what already has been said as to the right of the jury to pass upon the whole case is decisive as to this question also. No doubt the circumstances assumed in this request, so far as they were found by the jury, had a material bearing upon the issue of the care or negligence of the defendant’s driver; but the instructions given to the jury were not complained of, and we must assume that this branch of the case was properly explained to them with sufficient instructions, as in Tisdale v. Bridgewater, 167 Mass. 248, 250. Exceptions overruled.