Negligence. Street Railway. A motorman running a special electric car in the early morning before daylight along a track where no regular cars run at that hour, the electric headlight according to his own testimony throwing a pencil of light for about a thousand feet about eight feet wide which shut out from his view objects outside of its ray, going at a high rate of speed without sounding his gong at cross streets at a time when persons ordinarily using such streets would not expect a car to be on the track, can be found to be negligent, and the railway company employing him can be found to be liable to a milkman whose wagon after coming from a cross street is struck from behind with great violence by the special car.
In an action by a milkman against a street railway company for injuries to the plaintiff and his horse and wagon from being run into from behind by a car of the defendant, it appeared that the plaintiff was driving in his milk wagon in the early morning before daylight along his regular route and came from a cross street into a street on which were tracks of the defendant, that his wagon was struck from behind with great violence by a special car of the defendant running at a high rate of speed, that the plaintiff had driven over the milk route for ten years and during that time never had seen a car on the tracks at that place at the hour that the accident occurred, that the time for the first regular car was forty minutes after the hour of the accident, and that before his wagon was struck by the car he did not hear the sound of a gong or any notice or warning from the men in control of the car. Held, that the plaintiff could be found to have been in the exercise of due care.
There is no absolute rule of law that a person to exercise due care must look and listen before crossing the track of an electric street railway.
LORING, J.
[After the foregoing statement of the case.] 1. In its argument that there was no evidence of negligence on the part of the defendant, the defendant has assumed that the car was going ten or twelve miles an hour. But that assumption is not warranted. The jury were not bound to believe the testimony of the defendant's witnesses. If they believed (as they were warranted in believing on the evidence) that the wagon was struck sixty feet north of Cosgrove Street and was pushed along Gorham Street about twenty feet after it was struck by the car and up against a posts, and that the car did not stop until it was about one hundred feet beyond the post although the brake and the reverse were applied when the car was fifty feet south of the southerly line of Cosgrove Street, they could find that the car was going much faster than twelve miles an hour. In considering whether the defendant was guilty of negligence the jury could consider that the motorman testified that his electric headlight threw a pencil of light eight feet wide which shut out the motorman's view, and yet he was running his car at the high rate of speed indicated by what occurred, and without sounding his gong at cross streets when persons using such streets would not ordinarily expect a car to be on the track. We are of opinion that they were justified in finding that the defendant was negligent.
2. The difference between the case at bar and the Massachusetts cases cited by the defendant, (Hall v. West End Street Railway, 168 Mass. 461; Kelly v. Wakefield Stoneham Street Railway, 175 Mass. 331; Hurley v. West End Street Railway, 180 Mass. 370; Dooley v. Greenfield Turners Falls Street Railway, 184 Mass. 204; Gleason v. Worcester Consolidated Street Railway, 184 Mass. 290; Dunn v. Old Colony Street Railway, 186 Mass. 316; Black v. Boston Elevated Railway, 187 Mass. 172; Saltman v. Boston Elevated Railway, 187 Mass. 243; Seele v. Boston Northern Street Railway, 187 Mass. 248,) in support of its contention that as matter of law the plaintiff was guilty of contributory negligence, is that in those cases the accident happened at a time when cars were to be expected to be running on the tracks in question.
In addition the defendant has cited the case of Butler v. Rockland, Thomaston Camden Street Railway, 99 Maine, 149. The plaintiff in that case was struck by a train of lime rock cars, and it is stated in the opinion that "it appears that the plaintiff knew that the defendant was running trains of lime-rock cars" in addition to the passenger cars shown on its schedule. We do not know how far the court intended to go by this further statement in that opinion: "And in any event the defendant had the right to run cars when it chose, and it was the duty of the plaintiff to exercise some care to look out for them."
3. The defendant has argued that the presiding judge was wrong in telling the jury that "a person in approaching a street railway track is not bound by any strict rule of law, as when he approaches a steam railroad crossing, to stop and look and listen, or to take special precautions in order to determine whether there is danger to him in going upon the tracks." The distinction between the two is settled in this Commonwealth. Robbins v. Springfield Street Railway, 165 Mass. 30. Hall v. West End Street Railway, 168 Mass. 461, 462. Donovan v. Lynn Boston Railroad, 185 Mass. 533, 535.
Exceptions overruled.