Tashjian v. Worcester Consolidated Street Railway Co.

58 N.E. 281, 177 Mass. 75, 1900 Mass. LEXIS 994

• Court: Massachusetts Supreme Judicial Court
• Decided: October 18, 1900
• Status: Published

Opinion

Knowlton, J.

The defendant’s requests for instructions were all rightly refused. Each of them disregards the existence and possible effect of certain evidence which might negative the proposition contained in the request.

The first instruction could not he given, because there was evidence that the driver and the other plaintiffs could not see the car, and had no knowledge or warning of its approach until it was upon them, and the jury might have found that the car was running rapidly, and that the motorman was negligent in running upon them without giving them warning while they were in the exercise of due care.

The second could not be given, because it cannot be said, as matter of law, that a motorman has a right to assume that a person driving along by the side of the car tracks without any reason to suppose that a car is following close behind him will continue in the same line and will not attempt to cross the track. These requests must be considered in reference to the evidence in all its different phases. The conduct of the motorman should have been influenced somewhat by the fact that the vehicle before him was a carriage with a top, whose occupants could not see the road behind them. Before running forward at such speed that he would be likely to strike a wagon that might turn across the track, a motorman should give warning of the approach of the car, unless he has good reason to believe that the occupants of the wagon are aware of it. Robbins v. Springfield Street Railway, 165 Mass. 30.

There was evidence from which the jury well might find that the car was running at a rate of speed which was excessive in view of the fact that a horse and covered carriage were going along just before it very near to the side of the track.

The fifth instruction could not be given, because it leaves out of consideration possible negligence of the motorman in running rapidly, and without giving warning, close behind a covered wagon whose occupants might be supposed to be ignorant of the approach of the car, and to be liable to turn across the track while driving in the ordinary way.

There was evidence from several witnesses tending to show that the motorman failed to ring his gong or give signals of the approach of the car until too late to enable the plaintiffs to avoid a collison.

The instructions given were full and correct, and there was sufficient evidence to warrant verdicts for the plaintiffs. See White v. Worcester Consolidated Street Railway, 167 Mass. 43; Ellis v. Lynn Boston Railroad, 160 Mass. 341; Benjamin v. Holyoke Street Railway, 160 Mass. 3.

Exceptions overruled.