Negligence, Of street railway in disposal of snow, Imputed. Street Railway. At the trial of an action of tort against a street railway company to recover for injuries received by the plaintiff, while she was riding in a sleigh driven by another person, because the horse ran away owing to the fact that, when the sleigh was being driven between the street railway tracks, one of its runners became caught in a switch, there was evidence tending to show that, at the time of the accident, because of the way in which snow was thrown by the defendant from its tracks into the roadway at the sides of the tracks, driving and passing in the roadway were very difficult and the tracks instead of the roadway were being used by travellers upon the highway with vehicles, that, after the sleigh became caught in the switch, two of the occupants other than the plaintiff sought to loosen it, the horse became restless because of their efforts and ran away, and the plaintiff was thrown out and injured. There also was evidence tending to show that there had been snow storms of unusual frequency and severity and cold weather very nearly continuously. Held, that there was evidence from which the jury would be warranted in finding that the accident happened by reason of negligence of the defendant, and that the plaintiff's injuries resulted therefrom.
At the trial of an action of tort for injuries caused to the plaintiff, a young woman, because of negligence of the defendant which caused a horse, which was drawing a sleigh in which the plaintiff was, to run away, there was evidence tending to show that the driver of the sleigh was negligent, and a material question was, whether his negligence, if any, would bar the plaintiff from recovering. The defendant requested the presiding judge to rule that, if the jury should find that the plaintiff entrusted the care and management of the horse and sleigh to the driver and relied solely upon him for safety, then, in order to recover, she must show that the driver was, at the time of the accident, exercising due care in the management of the horse and sleigh. The ruling was refused and the judge charged the jury that, if the plaintiff had authority or control over the driver, and negligence on his part contributed to her injury, or if, by reason of a condition of things which she observed, she was under a duty to warn him or had reason to suppose a want of care or skill on his part, and did not warn him and such failure to warn contributed to cause the accident, then she could not recover; but that, if she had no authority or control over him, if there was no duty to warn him, and if she had no reason to suppose any want of care or skill on his part, then, if the defendant's negligence caused the injury, she could recover notwithstanding the fact that negligence of the driver contributed to cause it. Held, that the ruling requested was refused rightly and that the charge given was correct and sufficient.
KNOWLTON, C.J.
The first question in the case is whether there was evidence of negligence on the part of the defendant. There was much testimony that the road was in bad condition on each side of the defendant's tracks, that the snow was deep and difficult to pass over, that in some places there were large lumps of frozen snow, and that in others there was a high bank, sloping steeply down at the side of the road. According to the weight of the testimony the difficulty of passing at the sides of the tracks was so great that nearly all teams drove along the tracks, leaving the snow on each side without a regular path. For the changes in the condition of the snow from the condition that would have resulted from the storms alone, the jury might well find that the defendant was chiefly responsible, as it had frequently thrown out snow, and run snow plows over the tracks.
There was much evidence tending to show that the winter was unusually severe, that the snow storms were frequent and the cold nearly continuous, making it very difficult to keep the roads safe. The jury might well have found that the defendant did all that it reasonably could be expected to do. But there was a variety of testimony to show that conditions were bad near the place of the accident, and we think it was a question of fact whether they were due in any degree to the negligence of the defendant.
There was evidence to warrant a finding that, by reason of the bad condition of the road at the sides, the driver of the sleigh was not negligent in driving on the track, and that his driving there, taken in connection with the condition of the snow at the switch, was the direct and proximate cause of the accident. The fact that the plaintiff did not receive her injury immediately when the runner of the sleigh caught in the switch, but a few seconds or perhaps a minute or two afterwards, when the horse had escaped under the excitement of the collision and the attempt to extricate the runner of the sleigh, does not prevent a finding that the condition of the snow was the direct cause of the injury. McDonald v. Snelling, 14 Allen, 290. Marble v. Worcester, 4 Gray, 395. Bowes v. Boston, 155 Mass. 344. Davis v. Longmeadow, 169 Mass. 551.
The fourth request for a ruling was rightly refused. The instructions given on this point were correct and sufficient. They followed closely the doctrine fully stated and explained in Shultz v. Old Colony Street Railway, 193 Mass. 309.
The eighth ruling requested could not properly be given, and the exception to the refusal to give it is waived by the defendant.
Exceptions overruled.