Hansen v. Fitchburg & Leominster Street Railway Co.

De Courcy, J. On the evening of February 4, 1914, the plaintiff, in a hired carriage, was driving westerly round a curve in River Street, Fitchburg, and came into collision with a street railway car of the defendant which was coming from the opposite direction. The record is meagre and indefinite as to the facts of the accident, and the plan is of little aid because we have no means of locating the places on it to which the witnesses were pointing when they testified, for instance, that the car was “there,” or the light was shining “down here.” Even objects to which reference is made, such as the electric pole and the watering trough, are not indicated on the plan. If for that reason we have not apprehended accurately the circumstances attending the collision, the consequences must fall upon the plaintiff, whose duty it is, as excepting party, to satisfy us that on the evidence presented by the report he was entitled to go to the jury. All that appears definitely is that the plaintiff was driving close to the track, which was on his right; that he saw the light of [118] the car about one hundred and fifty feet away; that when the car came round the curve so that the head light shone upon the horse, the animal bolted and swung around, cramping the buggy; that the car was then “a little place away,” and the motorman turned off the light and brought the car to a stop after it had pushed the carriage four or five feet. Nothing was broken, no injury was done to the carriage, and the plaintiff remained in it and drove away. On the issue of the defendant’s negligence there is no contention that the car was running at an excessive rate of speed. What the plaintiff argues is that the jury could have found the motorman negligent in not sooner turning off the light or stopping the car. But, so far as the record shows, the motorman turned off the light immediately when the horse showed signs of uneasiness. Nor on the facts disclosed can it be said that he was negligent in not stopping the car sooner. We are unable to locate the spot where the collision occurred and cannot determine from the testimony or the plan how far away the plaintiff’s wagon was when it came within view of the motorman as the car rounded the curve. No reason is disclosed for stopping the car until just as the collision became imminent. The plaintiff had the unobstructed use of the street, as the team which was coming in the opposite direction had not approached within forty feet of him at the time of the collision. It does not appear that the motorman had any reason to anticipate that his car would not safely pass the plaintiff until the horse swung round; and then the side of the carriage, between the front and rear wheels, was struck by the fender before the car could be brought to a standstill. “It all happened so quick,” in the language of one of the witnesses. On the question of the defendant’s negligence the case is governed by Spoatea v. Berkshire Street Railway, 212 Mass. 599. As in that case, so here, the evidence is “too meagre to show any negligence on the part of the defendant, either in the character or management of the light or in the running of the car.” In accordance with the report the entry must be Judgment for the defendant.