Dube v. Keogh Storage Co.

Jenney, J. Adelard L. Dube on February 27, 1919, shortly before eight o’clock on a “clear and cold” morning, was seriously [492] injured by a motor truck belonging to the Keogh Storage Company and then being used in its business. The main question is as to the due care of the plaintiff. There was evidence tending to show the following facts: The plaintiff, who was employed by a street railway company which had tracks on Pleasant Street in Fall River, went to the scene of the accident to repair a spring switch connected with the tracks. The switch was located on that street near the corner of Fourth Street. Pleasant Street was forty feet wide and ordinarily much travelled. The plaintiff was alone, upon his knees, facing the west, engaged in tightening a nut in the switch box, using a wrench with his right hand to do the work and holding in his left hand an iron standard with a small flag thereon, which standard extended about three or four feet above the level of the street. As he knelt he looked and did not see any vehicle. He had been in this position about two or three minutes, when he “heard a yell” and was hit by the truck. While at work, he did not look to see if any vehicles were coming, or listen for their approach.' He testified, “I couldn’t look when I had to tighten up the nut.” At the time of the accident, there was no other vehicle near by. The defendant’s truck came on Pleasant Street from the west operated at a speed of about fifteen miles an hour. No signal or warning of its approach was given. The driver did not see the plaintiff before the truck hit him. The evidence justified the submission of the plaintiff’s due care to the jury. He was rightfully upon the way. The fact that while engaged in his work, he did not continue to look or listen, was not decisive against him. The case is within the authority of Goodfellow v. Boston, Hartford & Erie Railroad, 106 Mass. 461, Hanley v. Boston Elevated Railway, 201 Mass. 55, and Burns v. Oliver Whyte Co. Inc. 231 Mass. 519. Although it was the duty of the plaintiff to exercise the care of a reasonably prudent person under all the circumstances, he could rely to some extent on the assumption that the driver of the truck would exercise some care to avoid hitting him. Scanlon v. Berkshire Street Railway, 215 Mass. 554. Gagnon v. Worcester Consolidated Street Railway, 231 Mass. 160. Bombard v. Worcester Consolidated Street Railway, 234 Mass. 1. The defendant relies Upon Quinn v. Boston Elevated Railway, 188 Mass. 473, Kelly v. Boston Elevated Rail [493] way, 197 Mass. 420, Carney v. Boston Elevated Railway, 219 Mass. 552, and Dwyer v. Boston Elevated Railway, 220 Mass. 193. These cases are distinguishable from that under consideration, because the plaintiffs therein knew that their positions were those of undoubted danger, and took no precaution to prevent the receipt of injury. The defendant does not claim that the evidence did not justify the jury in finding that the operator of the truck was negligent. The exceptions to the denial of the motion that a verdict be ordered for the defendant, and to the refusal to give its first and second requests for rulings must be overruled. There remains for consideration only the exception “to so much of the charge pertaining to requests 5 and 6 as was not given in form or substance.” Considering this exception broadly, and as not limited to the charge, we think* there was no reversible error. The instructions given, taken as a whole, correctly covered the subjects referred to in these requests, so far as they were pertinent to the case on trial. Exceptions overruled.