DANIEL J. McCORMACK vs. BOSTON ELEVATED RAILWAY COMPANY & another.

MORTON, J. This is an action of tort for negligence against the Boston Elevated Railway Company and the Standard Oil Company of New York. There was a verdict for the railway company and against the Standard Oil Company, and the case is here on exceptions by the latter company to the refusal of the judge to rule as requested.

A driver of the Standard Oil Company had placed a tank wagon with three horses abreast between the northerly or inbound track of the railway company and the curbing on the northerly side of Arlington Avenue in Charlestown, and was about to deliver oil by means of a hose pipe running from the rear end of the tank across the sidewalk. The horses and wagon faced in the same direction in which the cars on the northerly or in-bound track were going. The plaintiff was a passenger on an in-bound car, and while standing on the running board was crushed between one of the horses and the car as the car was passing the horses. The hub was the nearest part of the wagon to the rail, and the distance between it and the running board of a passing car was fourteen inches. There was contradictory evidence as to the position of the horses, some witnesses testifying that all three of the horses were in

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the street between the curbing and the track, and others that one of the horses was upon the sidewalk. The outside trace of the horse standing nearest to the track had been attached to the whiffletree by means of a trace chain. When the wagon had been placed in position for delivering the oil the driver unfastened this trace and allowed it to hang loose suspended by a lazy strap which kept it from the ground and used the trace chain to lock the whiffletree to the nigh front wheel, and the trace and chain were in this position at the time of the accident. There was testimony tending to show that as the car was passing by, the horse "sheered" or moved toward the car and the plaintiff was crushed between the car and the hind quarters of the horse. There was also testimony tending to show that at the time the driver was about sixty feet back from the team running towards the office of the varnish factory where the oil was to be delivered.

We think that there was evidence of negligence on the part of the driver, and therefore that the first instruction requested, that there was no evidence of negligence on the part of the Standard Oil Company, was rightly refused. It was a question for the jury whether taking all of the circumstances into account the driver was or was not in the exercise of due care in leaving the horse standing so near to passing cars with the trace unfastened, and whether he was justified in leaving him even temporarily in that position while he went to the office of the varnish factory. It could not be ruled as matter of law that there was no evidence of negligence.

The request that the jury be instructed that the "Standard Oil Company ... had a right to place and keep its team in the position described for the time described for the purpose of unloading its merchandise," was properly refused. The right was, as the judge instructed the jury, to be exercised with due regard to the rights of others having the right to use the street. If given in the form in which it was asked, without explanation or qualification, the instruction would have been misleading. The instructions that were given were correct.

Exceptions overruled.

W. A. Munroe & A. M. Chandler, for the Standard Oil Company of New York.

J. J. Irwin, for the plaintiff.