Wentzell v. Boston Elevated Railway Co.

Braley, J. The motor car in which the plaintiffs were travelling when it came into collision with the defendant’s car not having been duly registered, the occupants were trespassers upon the highway, as, the accident having occurred on June 7, 1914, none of the cases are within the St. of 1915, c. 87. Feeley v. Melrose, 205 Mass. 329. The plaintiffs nevertheless contend that, even if they were violators of the law, the defendant is responsible, because it could be found that the conduct of the motorman was reckless, wanton and wilful. Dudley v. Northampton Street Railway, 202 Mass. 443, 449. The city ordinance that “No car shall be allowed to attain, a greater rate of speed than ten miles an hour” having been properly excluded because never approved by the board of railroad commissioners or their successors, the public service commission, as required by St. 1906, c. 463, Part III, § 74, the plaintiffs urge that, when coupled with the failure of the motorman to shut off the electric current or to apply the brakes seasonably, the rate of speed was so excessive as to make out a ease for the jury. But the conduct required to be proved is something different from negligence even when the degree may be found under our law to be gross. The alleged wrongdoer acts wantonly and wilfully only when he inflicts the injury intentionally or is so utterly indifferent to the rights of others that he acts as if such rights did not exist. The result is a wilful not a negligent wrong. Freeman v. United Fruit Co. 223 Mass. 300, and cases cited. It is true the jury could find that the car was moving at a speed of twenty-five to forty miles an hour, and that it ran a distance of one hundred or one hundred and fifty feet after the impact [278] before being brought to a stop. We are however of opinion that the circumstances are insufficient to show that the motorman acted wantonly or recklessly. As was said in Dean v. Boston Elevated Railway, 217 Mass. 495, where the conditions of operation were very similar to those of the present case, “The failure of the motorman to see the automobile before he did in such situation as it was, and to bring his car to a stop quicker, while evidence of negligence, fails to reach to the kind of conduct required as a basis for recovery by the plaintiffs.” The exceptions should be overruled, and it is So ordered.