O'Brien v. Boston Elevated Railway Co.

Rugg, C.J. These are actions of tort to recover compensation for personal injuries alleged to have been caused by the negligence of a motorman in charge of a trolley car of the defendant. Uncontroverted facts were that an automobile with left hand drive, driven by the plaintiff O’Brien, with whom the plaintiff Higgins was riding as a guest, passed the stationary trolley car in Davis Square, Somerville, proceeded down Elm Street, and at some point came partly upon the track in front of the following trolley car; that the automobile was brought to a stop on the track near the corner of Elm and Russell Streets and near a white pole, where at least one person was waiting to become a passenger on the trolley car; that, as the plaintiff Higgins was alighting, the trolley car struck the rear of the automobile and she was thrown to the ground and the automobile was pushed along the street. All this occurred at about eleven o’clock on a Sunday evening in February. The place was well lighted and there was no other traffic in the vicinity. There was evidence tending to show in its aspect most favorable to the plaintiffs that O’Brien, about a hundred feet before stopping his automobile, put out his left hand as a signal, and that at that time, looking back, he saw the trolley car at Chester Street, which was about four hundred fifty feet behind him, and that he did not look back again and could not tell where the trolley car was when he stopped his automobile. O’Brien drove by one white post after passing the trolley car in Davis Square and drove on to the second white post, intending to stop there in order that Miss Higgins might leave the automobile and take the trolley car. After the automobile stopped, the [255] door stuck and Miss Higgins was delayed thereby in alighting. It was impossible to drive the automobile to the right of the car tracks because that-part of the street was covered with slanting snow and ice to a considerable depth and the only practicable place to drive was in whole or in part on the space covered by the tracks. The plaintiff Higgins testified that she did not look back for the trolley car; that she knew that O’Brien was a skilful driver and trusted him, and that she observed people waiting at the white pole to board the car and relied upon the motorman stopping the trolley car for them. The governing principles of law are thoroughly settled and need not be repeated. It has not been argued that there was not evidence of the negligence of the motorman. The facts and evidence already summarized show that it could not rightly have been ruled as matter of law that either plaintiff was not in the exercise of due care. That was a question of fact to be decided by the jury under appropriate instructions. The cases fall within the authority of the decisions as to rear end collisions illustrated by Jeddrey v. Boston & Northern Street Railway, 198 Mass. 232, and cases there collected, Callahan v. Boston Elevated Railway, 205 Mass. 422, and cases there cited, Carroll v. Boston Elevated Railway, 205 Mass. 429, Chaput v. Haverhill, Georgetown & Danvers Street Railway, 194 Mass. 218, Williamson v. Old Colony Street Railway, 191 Mass. 144, Bombard v. Worcester Consolidated Street Railway, 234 Mass. 1, Morrissey v. Boston Elevated Railway, 210 Mass. 424, Herman v. Middlesex & Boston Street Railway, 235 Mass. 179, Reardon v. Boston Elevated Railway, 242 Mass. 383. The plaintiff Higgins was entitled to go to the jury on the principle of Shultz v. Old Colony Street Railway, 193 Mass. 315. The evidence distinguishes the cases at bar from decisions like Lawrence v. Fitchburg & Leominster Street Railway, 201 Mass. 489, O’Neill v. Middlesex & Boston Street Railway, 244 Mass. 510, and Will v. Boston Elevated Railway, ante, 250. Exceptions overruled.