Negligence, Street railway, Gross. In actions by an administrator against a street railway company, respectively at common law for personal injuries to the plaintiff's intestate and under R.L.c. 111, § 267, for causing his death, there was evidence that the plaintiff's intestate was an old man who was standing with others near a white pole station, that a car was approaching on the farther of the defendant's parallel tracks and that the others signalled to the car to stop and the intestate followed them across the street, that the motorman saw the signal but that he was making up time and did not stop and passed at unusual speed, striking the intestate before he cleared the farther track and causing injuries which resulted in his conscious suffering and death. Held, that the questions, whether the intestate was negligent in deciding to cross the street in front of the car or in the manner of carrying out that intention and whether the defendant's motorman was negligent, should be submitted to the jury in the action at common law, but that in the action under the statute a verdict should be ordered for the defendant because there was no evidence of gross negligence.
In considering the question whether on certain facts there was evidence of gross negligence of the motorman of a street railway car toward a traveller on the highway, it was said, by HAMMOND, J., that the cases of Beale v. Old Colony Street Railway, 196 Mass. 119, and Berry v. Newton Boston Street Railway, 209 Mass. 100, must be regarded as marking the extreme limit to which the doctrine of gross negligence in this class of cases can go.
HAMMOND, J.
The collision between the car and the deceased took place in the daylight at or near one of the usual stopping places of the cars. The deceased saw the car and attempted to cross the street in front of it. He and the car were travellers on the public way, with the reciprocal rights and duties of such travellers. Each was bound to use due care to prevent a collision.
The case is close. It is unnecessary to state the evidence in detail. It is conflicting, but upon a careful reading of it we are of opinion that the questions whether, in deciding to cross in front of the car, or in the manner of carrying out that intention, or in any other respect the plaintiff was careless, and generally whether either party was careful or careless, were for the jury.
We are also of opinion that there was no evidence of gross negligence. To hold otherwise would be going further than the decision in the cases of Beale v. Old Colony Street Railway, 196 Mass. 119, and Berry v. Newton Boston Street Railway, 209 Mass. 100, which must be regarded as the extreme limit to which the doctrine of gross negligence in this class of cases can go.
It follows that in the first action, which was brought for the death, the exceptions are overruled; and in the second, which was brought for conscious suffering, the exceptions are sustained.
So ordered.