Nickerson v. Boston Elevated Railway Co.
Nickerson v. Boston Elevated Railway Co.
Opinion of the Court
The plaintiff was injured as a result of being run over by a bus owned and operated by the defendant. The bill of exceptions states that "there was evidence of the plaintiff’s due care and the defendant’s negligence.” The only questions for decision arise from exceptions taken by the defendant to the admission in evidence of an ordinance of the city of Cambridge and to the portion of the judge’s charge which dealt with it.
the buildings on the east and west corners of White Street. There is a bus stop on the north side of Porter Square about one hundred twenty feet west of White Street. It is to be noted that on the southwest side of the square there are two platforms (between which car tracks run) on which are located the direction signs appearing on the plan.
The facts relating to the accident are these: Between nine and ten o’clock in the evening of April 19, 1943, the
Subject to the defendant’s exception the following ordinance of the city of Cambridge was admitted in evidence: General Ordinance, c. 28, art. 8, § 10: "Left turns prohibited. No driver of a vehicle shall make a left turn from Somerville Avenue into Massachusetts Avenue, westerly, excepting at a point beyond the northern end of the loading platform located in Porter Square.” The defendant concedes that the ordinance was in effect at the time of the accident, and the exception does not raise any question as to its authenticity. See St. 1943, c. 190, amending G. L. (Ter. Ed.) c. 233, § 75.
The defendant argues that the ordinance had no application to the facts in the present case because its bus at'the time of the accident was not making "a left turn from Somerville Avenue into Massachusetts Avenue, westerly,” within the meaning of the ordinance. The meaning of the ordinance is obscure. If its purpose was to prohibit a so called "II” turn such as the driver of the bus was making, it could only apply, strictly speaking, if it were attempted at a point opposite White Street where Somerville Avenue and Massachusetts Avenue meet, for otherwise there would be no "left turn from Somerville Avenue into Massachusetts Avenue.” If it was designed to prohibit what the driver actually did here, it has not said so. At the time of the accident the driver was not making a left turn from Somerville Avenue into Massachusetts Avenue; he was
It is conceivable, as the defendant has argued, that the ordinance was designed to prevent one coming into Porter Square from Somerville Avenue from turning left and proceeding south on Massachusetts Avenue “excepting at a point beyond the northern end of the loading platform located in Porter Square.” But even this interpretation presents difficulties because actually there can be no left turn south into Massachusetts Avenue from Somerville Avenue; such a turn can be made only after one is already in Massachusetts Avenue. But however that may be, it is enough for present purposes to say that the ordinance, fairly construed, does not reach the conduct of the driver in the case before us. The ordinance, being penal in nature, is to be strictly construed aand is not to be enlarged to comprehend matters beyond its plain import. Commonwealth v. Hayden, 211 Mass. 296. Libby v. New York, New Haven & Hartford Railroad, 273 Mass. 522, 525-526. Peabody v. Campbell, 286 Mass. 295, 304.
It follows that, since the ordinance was not applicable, there was error in admitting it in evidence. We cannot say that the error did not injuriously affect the substantial rights of the defendant (see G. L. [Ter. Ed.] c. 231, § 132) especially since the judge in substance instructed the jury, subject to the defendant’s exception, that they could find that the ordinance was violated, and that if it was, and the violation caused the accident, that would be evidence of negligence and might even be conclusive. Labrie v. Midwood, 273 Mass. 578, 582. Lockling v. Wiswell, 318 Mass. 160, 165.
Since the other exception was to that part of the charge that dealt with the ordinance, we need not discuss it; the question argued will not arise on the retrial of the case.
Exceptions sustained.
Reference
- Full Case Name
- Bernard E. Nickerson v. Boston Elevated Railway Company
- Cited By
- 4 cases
- Status
- Published