O'Neill v. Middlesex & Boston Street Railway Co.

De Courcy, J. The accident occurred in a sparsely settled locality on West Central Street, a public highway between Natick and South Framingham. North of the travelled portion of the road was an unwrought space which was occupied by double car tracks. The plaintiff and his brother Hugh at about nine o’clock on the night of January 5, 1917, were returning from South Framingham in an auto truck owned and operated by Hugh. The car skidded on the icy street over to the nearer or eastbound track; and after going some distance in that track the engine stalled. An electric car bound for Natick approached from behind, and the plaintiff and his brother pushed the auto upon the westbound track, and let the car pass. Soon after-wards the plaintiff noticed another electric car coming from Natick on this westbound track. The plaintiff’s testimony was that he saw it when about two hundred yards away; that his brother ran up the track and tried to stop it; but that the car continued on until it struck the automobile and he was thrown aside and injured. In the course of his cross-examination appears the following: “Q. But you cranked it for a while? A. Yes. — Q. And the car kept on coming all the time? A. Well, I didn’t look.—Q. You didn’t notice much about it? A. No.—Q. Did you see the car again after you first saw it two hundred yards away, until it struck? A. No. — Q. You didn’t pay any attention to it at all? A. No. I didn’t look.—Q. You didn’t pay any attention [512] "to the car after you saw it coming two hundred yards away, until it struck the automobile^ A. No. — Q. Is that right? A. Yes. . . . — Q. So that you heard your brother yell at the motorman, and it kept coming at the same speed, didn’t slacken up at all; is that right? A. Yes.—Q. And you were standing on the right hand side of the auto at that time, with the hood up? A. Yes. . . . — Q. And when you were standing there, if you had turned your eyes in the direction of the car, you would have seen it, wouldn’t you, and seen how close it was? A. Yes. — Q. And you were, as you stood there, on the further side of the auto like that (illustrating); you were practically facing the car? A. Yes. — Q. So that if you bad just raised your eyes at any time, you would have seen that the car was coming close, wouldn’t you? A. Yes. . . . — Q. And if you had wanted to step back into the street or over on the other track at any time, you could have gotten out into a place where there wouldn’t have been any danger to you; that’s true, isn’t it? A. Yes. But I wanted to get the track clear. ... —Q. if you had walked up two or three feet in the direction that the electric car was coming, then when the electric car struck the automobile it wouldn’t have pushed it against you, would it? A. No. — Q. And you wouldn’t have been injured in any way. A. Of course not.” The plaintiff had been employed as a chauffeur, and had also •done repair work on automobiles. This testimony as to his conduct at the time of the accident was in no respect controlled "by his remaining testimony or that of his brother, or the motorman, — the only witnesses to the accident. In Duggan v. Bay State Street Railway, 230 Mass. 370, which arose since the enactment of the due care statute (St. 1914, c. 553) it was said (page 379): “Where from the facts which are undisputed or indisputable, or shown by evidence by which the plaintiff is bound, only one rational inference can be drawn and that an inference of contributory negligence or want of due care, then the question of due care or contributory negligence is one of law for the court and a verdict for the defendant should be directed.” We are unable to draw any inference from the evidence except that the plaintiff’s lack of care contributed to his injury. Apparently he relied entirely on the motorman to bring the electric car to a stop before it reached the automobile. But the night was [513] dark, and the auto was where the motorman would not expect a vehicle to be. And although the plaintiff saw the car when it was two hundred yards away, and heard it approaching with undiminished speed, he needlessly remained in a place where he was sure to be hit, when a step or two would have placed him beyond danger of injury. Without considering the other defences, the ordering of a verdict for the defendant was justified on this ground. Lawrence v. Fitchburg & Leominster Street Railway, 201 Mass. 489. Gibb v. Hardwick, 241 Mass. 546. Dwyer v. Boston Elevated Railway, 220 Mass. 193. Judgment must be entered on the verdict for the defendant; and it is So ordered.