Negligence, Street railway, Reckless and wilful misconduct. In an action against a street railway corporation for personal injuries from being run into by an electric car of the defendant, it appeared that the accident took place between 12.30 and 1 P.M. on a pleasant day in June upon the main street of a small country village along which cars of the defendant were accustomed to run "pretty fast," that the car was going down a hill toward an intersecting street, that, when about seven hundred feet from the cross street, the motorman had seen the plaintiff proceeding from the main street into the intersecting street and had lost sight of him, that the motorman kept his eyes and attention on the track before him but did not sound a whistle or ring a gong, although the car was provided with both and a rule of the defendant required him to do so in approaching a cross street, that when about one hundred feet from the cross street he saw the plaintiff returning and about to cross the tracks and that, although he at once applied air brakes and reversed his power, he was unable to stop the car until it had struck the plaintiff, had hurled him forty feet and had continued on its course over a level track with the air brakes set for about two hundred and ten feet. There was no evidence that the plaintiff was in the exercise of due care. Held, that the excessive speed of the car and the failure to sound the whistle or gong were not evidence of such wilful misconduct and such wanton and reckless disregard of the probable harmful consequences of his acts on the part of the motorman as to entitle the plaintiff to go to the jury without evidence of due care on his part.
MORTON, J.
This is an action of tort for personal injuries. There are two counts in the declaration. The first alleges that the plaintiff was in the exercise of due care and that the defendant's servants were negligent. The second count contains no averment of the plaintiff's due care but alleges, as the bill of exceptions states, "gross negligence" on the part of the servants of the defendant. The case was before this court in 202 Mass. 463, on the defendant's exceptions to the refusal of the presiding judge to rule that on all the evidence the plaintiff could not recover. At that trial the presiding judge directed a verdict for the defendant on the second count, but refused to rule that the plaintiff could not recover on the other count. The plaintiff excepted to this ruling, but as the jury returned a verdict for him on the first count it did not then become necessary for him to prosecute his exceptions to the ruling in regard to the second count. The defendant's exceptions were sustained on the ground that the plaintiff was not in the exercise of due care. This rendered it necessary for the plaintiff to prosecute his exceptions in regard to the ruling on the second count and those are the exceptions which are now before us. The question is whether the judge was wrong in ruling that there was no evidence of negligence under the second count.
We think that the ruling was right. The negligence that must be shown in order to warrant a verdict in his favor where the plaintiff was not in the exercise of due care differs not merely in degree but in kind from ordinary negligence. Banks v. Braman, 188 Mass. 367. Fitzmaurice v. New York, New Haven, Hartford Railroad, 192 Mass. 159, 162, note. In order to warrant a verdict against the defendant, the plaintiff himself not being in the exercise of due care, there must be evidence tending to show conduct on the part of the motorman which was wilful and which he knew or ought to have known would tend to cause injury, and which was accompanied by a wanton and reckless disregard of the probable harmful consequences to others. Banks v. Braman, supra.
The evidence falls far short, it seems to us, of establishing such conduct. The accident occurred in broad daylight, between half past twelve and one o'clock on June 4, 1907. The day was pleasant. There was nothing unusual in the weather. The road was straight for some seventeen hundred feet from the place of the accident, in the direction in which the car was coming. The scene of the accident was the main street of a small country village, with such travel upon it and upon the road which crossed it as naturally might be expected. If it was not common, it was, at least, not unusual for cars to run "pretty fast," as the plaintiff testified, along the piece of road where the accident occurred. There was nothing to show that the attention of the motorman was diverted from his car or that he was not attending strictly to the running of it although he may have been driving it considerably faster than he ought to have driven it. Until he got to Park Street there was for quite a distance no cross street. From a point several hundred feet away he had, as he testified, seen the plaintiff cross the road and had no reason to suppose that he would return, or that if he did, he or anybody else coming out of Park Street would not take proper care to avoid an accident. There was nothing in the time of day or the state of the weather or the amount of travel to call for unusual and extraordinary care on the part of the motorman. Under these circumstances we do not think that his failure to sound the gong or blow the whistle and the excessive speed at which there was evidence to show that the car was going was sufficient to establish negligence of the sort which the plaintiff was required to show in order to recover. See Moran v. Milford Uxbridge Street Railway, 193 Mass. 52. The case differs from Ingraham v. Boston Northern Street Railway, 207 Mass. 451, and Vincent v. Norton Taunton Street Railway, 180 Mass. 104, and other cases relied on by the plaintiff.
Exceptions overruled.