Lounsbury v. McCormick

Jenney, J. About ten o’clock on the night of December 21, 1916, there was a collision between an electric car of the plaintiff Bay State Street Railway Company, of which car the plaintiffs Fred Lounsbury and Roy E. Hathaway were respectively conductor and motorman, and a motor truck owned by Joseph McCormick, the defendant, and operated by his agent Viall, who was then conducting the defendant’s business and acting — 335 — with his authority. The accident happened on a public highway at a place which was one hundred feet westerly from an intersecting public street, called Arcade Avenue, and where the railway was operated through a sparsely settled district in or near the village of Seekonk. The railway track, although wholly in the public street, was on its southerly side and separated from the travelled way by a guard fence. The grade of the track was lower than that of the travelled way. The construction was that commonly known as steam railroad construction, the rails and sleepers being exposed. Shortly before the accident, there had been a fall of snow followed by rain and by freezing weather; and the spaces between the rails and sleepers were somewhat filled with snow and ice. Travel upon the adjoining part of the highway was also more difficult than it otherwise would have been. The evidence was conflicting in regard to the weather conditions on the night of the accident. The individual plaintiffs and other witnesses testified that the weather was foggy and misty, and that it was not possible to see, even with the aid of the lighted headlight of the electric car, more than a short distance — from ■eighteen to twenty feet to that of a car’s length. Witnesses called in behalf of the defendant testified that there was little or no fog and that the headlight of the electric car could be seen for a distance of from one hundred to two hundred feet. Viall, who was thoroughly familiar with the place and its conditions, had an assistant with him. He testified that, because of the icy condition of the road and the presence of drifted snow, great difficulty had been experienced in driving the truck; that when he reached a point within a few feet of the easterly end of the fence dividing the track from the travelled way, the truck slipped and skidded on to the track and that he could not proceed along the part of the street wrought for travel, and therefore started along the track and went about two hundred feet into the cut, when the wheels again slipped and the truck stopped; that he and his assistant got out, applied a chain to the rear wheel to prevent its slipping, and then tried to go ahead but could not do so; that while so engaged they saw the bright headlight of the ■approaching street car, but kept on working and did nothing to give warning of the presence of the truck upon the track other than to show a red “barn lantern” which was on the rear of the — 336 — truck; and that as the car approached they left, getting over the fence. There was evidence, however, that there was in fact no light upon the rear of the truck. The length of time that elapsed after the truck entered into the cut and before the collision, was in controversy. Viall testified that after the truck entered upon the cut and before he saw the headlight on the approaching electric car it was “some five minutes.” Another witness testified that the time was “ten or fifteen minutes.” The evidence, while conflicting, was sufficient to justify a finding that the speed of the street car was not more than fifteen miles an hour, possibly twenty, and that the truck was not pushed forward by the impact of the street car. The evidence as to the previous use of the cut by vehicles other than electric cars was conflicting; and it was undisputed that just before and after the collision other automobiles travelled upon the part of the way wrought for travel and adjacent to the cut. The motorman testified that he blew the whistle of his car for Arcade Avenue, and as he approached that street, made a slight application of his brakes; that both the bonnet and the headlights of the car were lighted; that he could see about twenty feet ahead; that he had no power on the car at the time of the accident; that, looking ahead, his left hand on the controller and his right hand on the air brake, he first saw the truck when it was about twenty feet away, and that then he put on the reverse. The defendant requested the judge to rule that upon all the evidence''the plaintiff in each case was not entitled to recover; that the plaintiff was not in the exercise of due care; that the defendant was not negligent. These requests were properly refused. The jury could have found that it was an act of negligence, at that time and under the circumstances disclosed, to drive upon the track, or having driven thereon, and then having stopped, to have, given no notice of the presence of the car by placing warning lights or by giving other warning signals of the stalled condition of the truck. If there was no red light upon the rear of the truck there was a violation of the provisions of St. 1915, c. 16, § 3, which was evidence of negligence. Hallett v. Crowell, 232 Mass. 344. Although it was the duty of the defendant’s servants to apply themselves diligently to the removal of the truck from the track, it was also their duty to exercise reason — 337 — able care to give such warning as was necessary under the circumstances to those in charge of the approaching car. The jury well might have concluded that there existed a more immediate and imperative duty of warning, than of removal. The motorman and the conductor could have been found to be in the exercise of due care. Neither the speed of the car nor the failure of the motorman to see the truck or to stop the car was negligent as matter of law. Daigneau v. Worcester Consolidated Street Railway, 231 Mass. 166. The disclosed conduct of the conductor did not warrant a ruling that he failed to exercise reasonable care under all the circumstances. The tenth, fourteenth and seventeenth requests singled out a part of the relevant but controverted facts and asked for a ruling as to their effect. This the judge was not bound to do. Ayers v. Ratshesky, 213 Mass. 589. The twelfth could not properly be given. It asked the judge to rule that the amount of travel through the cut could not affect the question of the defendant’s negligence; but such use might well be considered. If there was but little travel and the defendant’s agent knew,,that fact, it could not be said that such a condition of things should not be considered as bearing upon his negligence, because if no object could reasonably be expected to be upon the tracks, the duty of warning might be found to be more imperative than otherwise. Nelson v. Old Colony Street Railway, 208 Mass. 159. This exception is considered and overruled, although upon the motion for a new trial, hereinafter referred to, the defendant requested a ruling in which he set forth that the amount of the use of the cut was very material on the question of due care and negligence. ■ By the sixteenth request, the judge was asked to instruct the jury that without special justifying circumstances, “it is evidence of negligence or wilful wrong on the part of the street railway ■company, its agents or servants,” for a street car to run into an automobile truck from behind. The rights of the parties upon the highway were defined to the jury without criticism or exception and it was not error to refuse the request, which was based on Vincent v. Norton & Taunton Street Railway, 180 Mass. 104. Special circumstances here appeared. There was no evidence of “wilful wrong” and hence no instruction relating thereto — 338 — was required, if indeed it would have been proper. The judge was not bound to divide the request and to consider it piecemeal. Verdicts were returned for the plaintiffs on May 28, 1918, Motions for new trials were filed on May 29, 1918, and amendatory motions therefor on July 9, 1918. These motions were overruled on November 20, 1918. On December 27, 1919, the defendant filed motions for a new trial on the ground of newly discovered evidence and of a mistrial of the case, specifying also that certain witnesses called by the plaintiffs had testified falsely or under a misapprehension or mistake; that the plaintiffs had testified falsely as to material facts; that the jurors were improperly influenced to return a verdict, and had before them information not in evidence which they in fact considered; that the plaintiffs since the trial had been able to do their regular work and had not suffered the permanent incapacity which the jury had anticipated. During the hearings upon said motions, which were denied, the defendant made ten requests for rulings. Although the bill of exceptions does not so recite expressly, we assume that the motions were heard wholly upon the accompanying affidavits which, with the findings of fact of the trial judge, are made a part of the exceptions. The judge also recites that he carefully examined in connection , with the motion a full transcript of the evidence in the cases. All of these requests were rightly refused. Those numbered one and four relate to perjury by a material witness and the effect thereof. The judge found that there was no evidence of such perjury. Those numbered two, five and seven, based on the assumption that the jury were affected by facts not a part of the evidence and contrary thereto, were not supported by competent evidence. Randall v. Peerless Motor Car Co. 212 Mass. 352, 386. There was no evidence that the jury were influenced by the “fact of insurance company” referred to in the seventh request. One of the jurors made affidavit that while in the jury room, during recesses while the trial was going on, he heard it mentioned on more than one occasion that an insurance company was interested. This was not enough to show influence upon the minds of the jury sufficient to oblige the judge to grant a new trial. The mere fact that insurance exists and is brought to the knowl — 339 — edge or attention of the jury, while it may authorize a new trial, does not compel such action. It was not shown that the minds of the jury were affected by the interest of an insurance company in the result of the litigation. See Anderson v. Duckworth, 162 Mass. 251; Perkins v. Rice, 187 Mass. 28; Sibley v. Nason, 196 Mass. 125; Stevens v. Stewart-Warner Speedometer Corp. 223 Mass. 44; Kennedy v. Armstrong, 223 Mass. 354; Dempsey v. Goldstein Brothers Amusement Co. 231 Mass. 461. There was no error in the refusal of the fifth and sixth requests as to the amount of damages. The proffered evidence was largely cumulative. It could not be determined as matter of law, as the defendant requests, that the “injuries have proved to be much less than the jury concluded they were at the time of the trial;” and even if “the injuries have not proved as great as the evidence at the trial indicated,” the seventh request was properly refused because of the finding of the judge that the evidence, if believed, fully warranted the verdicts rendered with respect to damages. Davis v. Custer, 230 Mass. 603. The exceptions to the denial of the eighth and tenth requests are based on the assumption that the defendant did not have a fair trial. They must be overruled because as found by the judge there was no evidence by which they were supported. The ninth request relates to the materiality of the use of the cut in which the track was located. It assumed that the evidence showing it had been but little used was “perjured, mistaken and known to be misleading,” and further assumed the truth and probative effect of evidence contained in the affidavits accompanying the motions. It was refused rightly. We have examined with care the basic questions involved in the disposition of the motions for new trial and find no error. Exceptions overruled.