Keeney v. Springfield Street Railway Co.

Sheldon, J. Apparently it was not disputed that the plaintiffs’ automobile was duly licensed in Connecticut, that they had violated none of the requirements of our statute then in force (St. 1909, c. 534, §§ 3, 10), and that they were rightfully operating their machine in this Commonwealth. The rule stated in Chase v. New York Central & Hudson River Railroad, 208 Mass. 137, 156, and the cases there cited, has no application here. The jury could have found that the accident was due to negligence of the defendant’s motorman in driving his car at an excessive rate of speed, in failing to observe Keeney as the latter ran up the track towards the car waving his hands and trying to attract the motorman’s attention, and in not stopping his car in season to avoid running into the automobile. This is too obvious to require prolonged discussion or reference to many decisions. See Lawrence v. Fitchburg & Leominster Street Railway, 201 Mass. 489, 493. The cases must turn upon the question whether there was evidence that the plaintiffs were in the exercise of due care. In our opinion there was such evidence. The fact that their machine had been thrown across the defendant’s track in consequence of a collision with a horse and wagon is not decisive against them. Keeney, who was driving the automobile, had seen a light ahead of him and thought that it was on the rear of [48] a vehicle going in the same direction with himself. If this had been so, his turning to the left to go around it would have been t proper. R. L. c. 54, §. 2. Nor was his mistake necessarily due to negligence. The night was dark; a little snow was falling. It was for the jury to say whether his mistake showed negligence. When he discovered his mistake, it was for the jury to say whether he acted with due care in trying to a’void a collision by turning sharply to the left; and the same is true of all his management of the automobile until it came to a standstill upon the defendant’s track. Nor did he then, like the plaintiff in Lawrence v. Fitchburg & Leominster Street Railway, 201 Mass. 489, rely solely upon the vigilance and diligence of the motorman. According to his own testimony, he ran toward the, approaching car over a distance of nearly two hundred feet in an effort to warn the motorman and avert a collision which could be avoided only by a timely stopping of the car. We think it manifest that the issue of his due care was for the jury. Renard’s due care was also for the jury to determine. We cannot say that any conduct of his contributed to the happening of the accident. Whether he ought to have warned Keeney before the collision with the horse and wagon, and whether he made proper efforts to get out of the automobile after the top had shut down upon him, were questions of fact upon which we cannot pass. As the only question‘raised is whether the cases should have been submitted to the jury, we need not consider whether any negligence of Keeney, if such had been found, would, have been imputed to Renard also, and so would have barred a recovery by either plaintiff. In neither of these cases should a verdict for the defendant have been ordered. It follows, under . the stipulations, that judgment must now be entered .in favor of Keeney for $750 and costs and in favor of Renard for $2,000 and costs. So ordered.