O'Donnell v. Bay State Street Railway Co.

Pierce, J. These were two actions of tort, tried together; the first, to recover damages for personal injuries sustained by a child (hereinafter called the plaintiff) by reason of a collision with a street car of the defendant; the second,by the father of the plaintiff to recover damages to him consequent upon the injury to his son. The accident happened July 12,1914, on Highland Avenue running south from Salem to Lynn, at about 4:55 o’clock on a pleasant Sunday afternoon. The plaintiff, a bright, intelligent boy seven years of age, was capable of exercising due care. At the conclusion of the evidence the defendant moved that a verdict be directed for it, which the judge refused to do, and the defendant excepted. The testimony for the plaintiff showed that he started with his brother, who was nine years of age, from a point about twenty-five feet west of the nearest rail of the tracks to cross to the east side of the avenue; that he ran or “ trotted, ” followed by his brother, in a diagonal southerly direction until he reached the car track at a point fifty feet to the south of the place of his departure; that as he came to the track his father and others shouted to him; that he turned and tried to get off the track and that he was struck by the running board of the car. The evidence for the plaintiff also showed that it was possible. [420] to have seen the coming car for at least one hundred yards; that before starting to cross the track (but how long before does not appear) the brother looked “but didn’t see any car coming;” that the plaintiff was not seen to look; that the car when first seen by any witness was about fifty feet from the place of collision, “going very fast” and unaccompanied by sound of bell or gong. Although the car was plainly visible as it passed over a space of one hundred yards, no witness testified to seeing it until the plaintiff was about to step on the track and it was fifty feet away from the place of contact. The only evidence offered by the plaintiff concerning the speed and operation of the car was that of the witness Titus, who said: “When I first noticed the car it had just passed the automobile, [the point from which the plaintiff started] just before they screamed. No bell or gong was sounded on the car. The car was going very fast;” and the testimony of the father, that the car was coasting and going very fast when opposite the automobile. The father also testified that the whole episode, that is, the start of the boy, the coming of the electric, and the accident, was measured in time by the snapping of his finger. The witness Titus testified that “ it all happened like the snap of a finger.” Upon the facts thus disclosed, a majority of the court are of opinion that the jury would not be warranted in finding that the car was run at an excessive rate of speed, that the motorman was negligent in “coasting,” in not ringing the bell or gong, or in not anticipating and foreseeing that boys would suddenly run out from behind the automobile at the side of the road and attempt to cross the track in the face of his car. Carroll v. Boston Elevated Railway, 200 Mass. 527, 536. Donahue v. Massachusetts Northeastern Street Railway, 222 Mass. 233. Selibedea v. Worcester Consolidated Street Railway, 223 Mass. 76. It is unnecessary to consider whether as matter of law the defendant- has affirmatively established that the negligence of the plaintiff contributed to his injury. St. 1914, c. 553. A verdict should have been directed for the defendant. The exceptions must be sustained and judgment entered for the defendant in accordance with St. 1909, c. 236. So ordered.