Negligence, Due care of plaintiff, Street railway, Violation of town regulation.
Where the track of a street railway is laid on one side of the wrought part of a road of a town, the nearer rail of the track being less than twelve feet distant from the piazza in front of a store, and the driver of a delivery wagon employed by the proprietor of the store, after looking in both directions and seeing no car approaching, backs his horse and wagon across the track, dismounts from the wagon, lets down the tailboard, and, climbing into the wagon, proceeds to unload a barrel from it, when he hears a gong and almost immediately the team is struck by a car approaching at an excessive rate of speed and he is thrown out and injured, in an action for his injuries thus caused the question whether he was in the exercise of due care is for the jury to decide upon the evidence presented.
The violation by a street railway company of a regulation, established by the selectmen of a town and approved by the board of railroad commissioners, concerning the speed of cars upon street railways in the town, is evidence of negligence in an action against the street railway company for personal injuries alleged to have been caused by a car of the defendant when running at an excessive rate of speed.
MORTON, J.
The plaintiff introduced evidence tending to show that on the morning of the accident he had backed up in front of his brother's store in Greenfield the delivery wagon which he had been driving, and was in the act of unloading a barrel of sugar therefrom, when the wagon was struck by one of the defendant's cars and the plaintiff was thrown from the wagon, receiving the injuries complained of and to recover for which this action was brought. There was a verdict for the plaintiff, and the case is here on exceptions by the defendant to the refusal of the presiding judge to give certain rulings that were requested by the defendant.
It could not be ruled as matter of law that the plaintiff was not in the exercise of due care. He had the right to back his wagon up to the store as he did, and he testified that before doing so "he looked up and down the street for a car but saw none." It was for the jury to say whether, in view of the frequency with which cars came along the track, he should have looked again before or while attempting to unload the barrel, or whether he did all that could be done to avoid an accident after he heard the gong or saw the car. It was also for the jury to say whether, in view of the distance at which a car could be seen, he looked carelessly if he looked as he said he did, or whether, in view of some of the testimony as to the speed of the car, it was more probable that there was no car in sight when he looked. See James v. Interstate Consolidated Street Railway, 193 Mass. 264; Kerr v. Boston Elevated Railway, 188 Mass. 434; Jeddrey v. Boston Northern Street Railway, 198 Mass. 232.
It could not be ruled as matter of law that there was no evidence of negligence on the part of the motorman. The rules and regulations established by the selectmen and approved by the board of railroad commissioners concerning the speed of cars upon street railways in Greenfield provided that no car should be operated at a speed greater than eight miles an hour along that portion of the street where the accident occurred. There was evidence tending to show that the car was running at the rate of twenty miles an hour. This was or could have been found to be of itself some evidence of negligence. Stevens v. Boston Elevated Railway, 184 Mass. 476. In addition, the same evidence which tended to show that the plaintiff should have seen the car tended also to show that the motorman in the exercise of due care should have seen the wagon in time to avoid a collision. There was also evidence tending to show that the gong was not sounded, and that the car was running at an excessive rate of speed, and that other regulations in regard to the operation of the car besides those relating to speed were violated by the motorman.
Whether the rails were wet and slippery and the collision was due to that circumstance, and whether the motorman did all that he could to avoid the accident were likewise plainly questions of fact for the jury. It seems to us that the case was rightly left to the jury.
Exceptions overruled.