Robbins v. Dartmouth & Westport Street Railway Co.

Loring, J. But one question of law was raised in this case, namely, were the jury warranted in finding that the plaintiff’s negligence was not a contributory cause of the accident? The plaintiff was riding a motor cycle going north on Cottage [548] Street in the city of New Bedford before sundown on a Sunday afternoon. Cottage Street crosses Union Street at right angles. Both streets are fifty feet in width including the sidewalks. There was a house on the southeast corner of the two streets, that is to say, on the plaintiff’s right side as he rode up Cottage Street, which obstructed his view to the east, the direction from which the car in question was coming. The plaintiff testified that as he approached Union Street he heard no warning, and that he looked both ways for automobiles and street cars. That he was going at that time about four or five miles an hour, “ as slow as they [motor cycles] could go.” “ That when he got to where he could look down Union Street quite a ways he saw the electric car ”; he then shut off his power; but seeing that he could not stop before getting on to .the tracks he put it on and bore off to the west at as sharp an angle as possible. The car hit the back part of the wheel of his motor cycle just as he was leaving the car track. He further testified that if he had turned to the west on Union Street without going on to the tracks he could not have made “ sure of staying on.” By his own statement the plaintiff was fifteen feet from the nearest rail when it was possible to look down Union Street, and that the car was then seventy feet away. It is admitted that Union Street was one of the principal streets of the city, and the plaintiff was familiar with the crossing of these two streets. The jury were warranted in finding that the defendant’s car was coming at the rate of forty miles an hour. There was a conflict in the evidence as to how far a traveller emerging from Cottage Street could see down Union Street to the east, and how near the defendant’s track he would have to be before he could see in that direction. The jury took a view. The defendant’s contention is that on his own story the plaintiff was riding “ at a speed at which it was impossible either to stop or turn to one side after reaching a point where it was possible to see into the intersecting street and to learn whether or not a car was approaching.” That he allowed himself to get into a place of danger unnecessarily, and that this was as matter of law a negligent act. But there are two facts (or, more accurately, the jury were [549] warranted in finding two facts) which the learned counsel for the defendant has omitted in this argument, namely: That the defendant’s car was coming at the rate of forty miles an hour and that a traveller could not have been reasonably held to anticipate that a car would come at that rate of speed along “ one of the principal streets of the city ” of New Bedford. If the defendant’s car had been coming at any rate of speed that could have been reasonably anticipated the plaintiff could have seen it when it was much farther off, and in the case at bar would have crossed the track in safety, or at least the jury would have been warranted in finding that he would have crossed in safety. Exceptions overruled.