Jennings v. Boston Elevated Railway Co.
Jennings v. Boston Elevated Railway Co.
Opinion of the Court
This is an action of tort to recover damages for personal injuries, sustained by the plaintiff as the result of being struck by an electric car of the defendant near St.
The plaintiff and Elizabeth Thompson, aged nine and eight years respectively, immediately before the accident walked north on the westerly sidewalk of Dorchester Avenue until they reached a point a short distance south of a house numbered 2145. Here, as they were going along, the plaintiff saw á dog and “became a little frightened” when the dog came out barking from the house or alleyway near the house. She did not want to pass the dog and she and Elizabeth went across the street. Before she left the sidewalk she looked toward Boston. She did not look toward Milton but, as she testified, “as she went across she had her eyes open . . . thinking that ‘if a car came down the hill and the conductor saw me, that he would stop his car and ring his bell.’ ” She testified that “the motorman didn’t ring his gong before she was struck; that when she first saw the car she was right close to it, right in front of it, in the middle of the car track” ; that “she walked fast across the street”; and that she had lived in the section where the accident occurred about three years, during all of which time she has attended St. Gregory’s School. The uncontradicted testimony of Elizabeth was, in substance, that when she first saw the car she was on the second rail of the outbound track and at that time the plaintiff was between the inbound and outbound tracks; that “the
It was in evidence that the car in question started at the car barn, which is about four hundred yards south from the place of the accident, travelled north on the inbound track, and stopped at the top of the hill just opposite the church; that as it again started the motorman saw four or five medium sized girls between twelve and fourteen years of age on the sidewalk below the church and four or five big children near St. Gregory’s Church going toward Milton; that when the car had moved down the hill about one hundred yards the motorman saw the plaintiff and her companion on the left hand sidewalk about one hundred and fifty yards away; that he saw them start to run across the road and at that instant he pulled the reverse and threw on his air brake immediately; and that “the car stopped probably six feet or seven feet away from where he started to crank it.” There was further evidence that the car was coasting; that it had been running about ten or twelve miles an hour; and contradictory evidence as to whether the gong was or was not rung. There was evidence that the plaintiff and her companion could have been seen from a distance of four hundred and fifty feet.
The plaintiff introduced in evidence the' following ordinances of the city of Boston: “Section 68. In taking any slope, descent or grade the speed of the car must be so reduced as to test the working of the brakes. . . . Section 73. No person having control of the speed of a street railway car passing in a street shall fail to keep a vigilant watch for all teams, carriages and persons, especially children, nor shall
The plaintiff was asked: “Well, now as you have gone to and fro from your home to the school have you noticed about cars, had you noticed before the accident how cars were operated in front of the school when children were on the sidewalk or crossing the street? ” Upon the witness answering “Yes” she was asked, “What have you noticed Margaret? ” The answer to the question was excepted to, excluded, and an exception saved by the plaintiff. In this ruling there was no error. The answer would or might open collateral issues as to what was done or not done in any instance observed by her and might unduly prolong the trial.
At the close of the evidence the judge at the request of the defendant directed a verdict in its favor, and the jury returned a verdict for the defendant as directed. We are of opinion the exception of the plaintiff saved thereto must be overruled. The evidence would not warrant the jury in finding, as the plaintiff contends, that the defendant was negligent (1) “In operating the car at an excessive rate of speed”; (2) “In giving no warning or signal of its approach”; (3) “In not slowing down or stopping the car”; (4) “In not seeing the plaintiff soon enough to stop his car and avoid injuring her”; and (5) “In running into her although his view was unobstructed, and although he saw her or could have seen her starting to cross the street 450 feet away.” Nor do we think the defendant warrantably could have been found negligent because the car was driven in violation of any of the quoted ordinances. The undisputed facts, which need not be repeated, make it plain that the provisions of the ordinances are not' applicable in the circumstances here disclosed. Nor could the jury warrantly have found the defendant negligent because it might have used some other
We do not mean to intimate that the plaintiff was in the exercise of due care when injured, nor that considering her age and the statute that question was not for the jury.
Exceptions overruled.
Reference
- Full Case Name
- Margaret Jennings v. Boston Elevated Railway Company
- Status
- Published