Wilkins v. Boston & Northern Street Railway Co.

100 N.E. 540, 213 Mass. 265, 1913 Mass. LEXIS 958

• Court: Massachusetts Supreme Judicial Court
• Decided: January 27, 1913
• Status: Published

Opinion

Sheldon, J.

The only question presented by this report is whether the jury would have been warranted in finding that the plaintiff was in the exercise of due care at the time of the collision between the defendant’s electric car and his wagon. The question must be answered in the affirmative. He testified that as he approached Centre Street he listened for a car or an automobile, but heard no noise of an electric motor or the buzzing of a wire. He also looked, but saw no car until it was too late. Moreover, there was here only a single track, and on his testimony no car was due to pass at this place for nearly ten minutes. There was evidence that the defendant’s car was going unreasonably fast. Under these circumstances the issue as to his due care was for the jury. Berry v. Newton & Boston Street Railway, 209 Mass. 100, and cases cited.

If there was a discrepancy between the plaintiff’s evidence given in chief and some of his answers under cross-examination, this raised only a question for the jury. McCarthy v. Boston Elevated Railway, 208 Mass. 512.

The fact that the plaintiff’s vision was obstructed by a tree at or near the corner of Centre Street is not decisive against him. The case of Kelly v. Wakefield & Stoneham Street Railway, 175 Mass. 331, upon which the defendant relies, was explained when that case came again before the court in 179 Mass. 542. The rule laid down as to railroad crossings is of course not applicable here. See the cases collected in Berry v. Newton & Boston Street Railway, 209 Mass. 100, 103.

Upon the terms of the report and the agreement of the parties, the verdict for the defendant must be set aside, and the case must stand for the assessment of damages only.

So ordered.