Murphy v. Worcester Consolidated Street Railway Co.

Braley, J. The question of the due care of the plaintiff’s intestate was for the jury. St. 1914, c. 553. Nye v. Louis K. Liggett Co. 224 Mass. 401. We also are of opinion that there was evidence for the consideration by the jury of the defendant’s negligence. The accident happened in broad daylight, and they would have been warranted in finding that the defendant’s motorman from a point seven hundred and eighty-five feet distant from the place of the collision had an unobstructed, continuous view of the street and of the intersecting driveway over which the slowly moving disc harrow drawn by two horses and driven by the intestate was passing making a “terrible noise” as it approached the track. It was open to them to find further that as the car approached no gong was rung or whistle sounded, and that its momentum or speed was such that upon striking the harrow just back of the horses the pole was broken, the brace and seat whereon the intestate was riding were bent, his body was run over, mangled “and carried a distance of over one hundred and five feet and less than one hundred and twenty feet” before the car stopped. The motorman was bound to use ordinary care to avoid coming into collision with other travellers lawfully using the public ways, with whom the intestate must be classed. If under all the conditions the jury were satisfied that by the use of due diligence the motorman should have seen the team coming down the driveway on to the track, and that by slackening speed or by giving warning of the approach of the car or by application of the brakes, the accident could have been averted, the defendant is responsible in damages for the negligence of its servant. Horsman v. Brockton & Plymouth Street Railway, 205 Mass. 519,523. Nelson v. Old Colony Street Railway, 208 Mass. 159. Berry v. Newton & Boston Street Railway, 209 Mass. 100,101, 102, and cases cited. Exceptions sustained.