Negligence, In use of highway. In an action against a street railway corporation for damage to the plaintiff's automobile from being run into by an electric car of the defendant when it was standing upon the track on which the car was approaching, there was evidence that the accident occurred on a dark night when a little snow was falling, that before the accident the plaintiff was driving his automobile on the highway at a speed of not more than fifteen miles an hour, that he saw a light ahead of him and thought that it was on the rear of a vehicle going in the same direction with himself, that accordingly he turned to the left to go around it, when he discovered that a horse and wagon were coming toward him and in trying to avoid a collision turned sharply to the left, that the rear of the automobile skidded slightly in the wet snow and struck the horse a glancing blow, which did not throw down the horse or upset the wagon, that at the instant of contact the plaintiff turned his wheel and put on his brakes so suddenly as to stall his engine and that the automobile started skidding, stopping finally across the track of the defendant, that, when the automobile stopped, its top collapsed covering the sides and tonneau and also falling upon the front seat, that the plaintiff crawled out and examined his automobile, when he noticed the glare of the headlight of an approaching electric car, then distant over a quarter of a mile, that he started running up the track toward the approaching car, and as he got into the glare of the headlight held up his arms and waved them, that he ran thus a distance of about one hundred and seventy-five feet from the automobile, until he was obliged to step to one side to avoid being run over, that the car passed him without slackening its speed and moving at the rate of at least from thirty-five to forty miles an hour, that as the car passed the plaintiff stood on the travelled way waving his hands, and the car proceeded to run down the automobile. Held, that there was evidence for the jury, not only of negligence of the defendant's motorman, but also of due care on the part of the plaintiff.
SHELDON, J.
Apparently it was not disputed that the plaintiffs' automobile was duly licensed in Connecticut, that they had violated none of the requirements of our statute then in force (St. 1909, c. 534, §§ 3, 10), and that they were rightfully operating their machine in this Commonwealth. The rule stated in Chase v. New York Central Hudson River Railroad, 208 Mass. 137, 156, and the cases there cited, has no application here.
The jury could have found that the accident was due to negligence of the defendant's motorman in driving his car at an excessive rate of speed, in failing to observe Keeney as the latter ran up the track towards the car waving his hands and trying to attract the motorman's attention, and in not stopping his car in season to avoid running into the automobile. This is too obvious to require prolonged discussion or reference to many decisions. See Lawrence v. Fitchburg Leominster Street Railway, 201 Mass. 489, 493. The cases must turn upon the question whether there was evidence that the plaintiffs were in the exercise of due care.
In our opinion there was such evidence. The fact that their machine had been thrown across the defendant's track in consequence of a collision with a horse and wagon is not decisive against them. Keeney, who was driving the automobile, had seen a light ahead of him and thought that it was on the rear of a vehicle going in the same direction with himself. If this had been so, his turning to the left to go around it would have been proper. R.L.c. 54, § 2. Nor was his mistake necessarily due to negligence. The night was dark; a little snow was falling. It was for the jury to say whether his mistake showed negligence. When he discovered his mistake, it was for the jury to say whether he acted with due care in trying to avoid a collision by turning sharply to the left; and the same is true of all his management of the automobile until it came to a standstill upon the defendant's track. Nor did he then, like the plaintiff in Lawrence v. Fitchburg Leominster Street Railway, 201 Mass. 489, rely solely upon the vigilance and diligence of the motorman. According to his own testimony, he ran toward the approaching car over a distance of nearly two hundred feet in an effort to warn the motorman and avert a collision which could be avoided only by a timely stopping of the car. We think it manifest that the issue of his due care was for the jury.
Renard's due care was also for the jury to determine. We cannot say that any conduct of his contributed to the happening of the accident. Whether he ought to have warned Keeney before the collision with the horse and wagon, and whether he made proper efforts to get out of the automobile after the top had shut down upon him, were questions of fact upon which we cannot pass.
As the only question raised is whether the cases should have been submitted to the jury, we need not consider whether any negligence of Keeney, if such had been found, would have been imputed to Renard also, and so would have barred a recovery by either plaintiff.
In neither of these cases should a verdict for the defendant have been ordered. It follows, under the stipulations, that judgment must now be entered in favor of Keeney for $750 and costs and in favor of Renard for $2,000 and costs.
So ordered.