Wilmur Motors, Inc. v. Eastern Massachusetts Street Railway Co.

Wait, J. The indisputable evidence shows that the plaintiff Harding drove the automobile in which he and other plaintiffs were riding upon the defendant’s tracks in front of an electric street car; that the car was close upon him to his left; that, in starting from the point where his machine had been parked at the sidewalk, he looked to his right through his rear window in order to avoid backing too far toward an automobile parked behind him, in his endeavor to get room to move forward and pass another automobile parked in .front of him; that he then drove forward without looking backward to his left although he knew he must go upon car tracks over which electric street cars were likely to be passing. The case is bare of evidence of any care for their safety upon his part or the part of his companion plaintiffs. Not one paid any attention to the risk of collision with any street car which might be close by. Their cases are governed by the decision in Birch v. Athol & Orange Street Railway, 198 Mass. 257. The circumstances of the [34] accident were in evidence. No statutory presumption of due care (G. L. c. 231, § 85) was to be weighed with them. Bagnell v. Boston Elevated Railway, 247 Mass. 235, 238. The plaintiff Wilmur Motors, Inc., the owner of the machine driven by Harding, is not affected by the lack of care of the other plaintiffs, none of whom were its agents. It could recover if the damage to its motor vehicle was due to negligence of the defendant’s servant. Nash v. Lang, 268 Mass. 407. There is no sufficient evidence of such negligence. If his testimony was believed, manifestly he used all requisite care. If it was disbelieved, there was nothing to show lack of care. His speaking to a passenger with reference to her place of alighting even if, momentarily, it took his eyes from the track, was part of his duty in operating the street car; and, unless more were shown, could not be found to be negligence. The judge was right in directing verdicts for the defendant. Exceptions overruled.