HERBERT B. NEWTON vs. WORCESTER CONSOLIDATED STREET RAILWAY COMPANY.

PIERCE, J. This is an action of tort to recover for personal injuries and property damage growing out of a collision between an automobile operated by the plaintiff and a trolley car of the defendant at a point on Coburn Avenue, a public highway in the city of Worcester, where the defendant's track, coming from a private way, crosses. At the close of all the evidence the defendant filed a motion for a directed verdict in its favor, and to the denial of this motion it duly excepted. The jury returned a verdict for the plaintiff. The judge reserved leave to enter a verdict for the defendant under G. L. c. 231, § 120. The defendant made a motion that the judge enter a verdict in its favor under the reservation, and upon his refusal to allow this motion the defendant

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duly excepted. The case is before this court on the defendant's exceptions.

The evidence was conflicting, but in its aspect most favorable to the plaintiff the jury were warranted in finding the following facts: On a clear day at about 1:30 p.m. the plaintiff, driving his automobile with all the windows and the windshield closed, was proceeding northerly and to the right of the center of Coburn Avenue, a straight street thirty-one feet wide between the gutters. The car tracks of the defendant, on a down grade, emerge from a private right of way between Alvarado Avenue and the westerly side line of Coburn Avenue and cross Coburn Avenue at grade. A "stop" sign on the day in question, and before that time, was fastened to the trolley wires and meant that the trolley cars should stop at the entrance to Coburn Avenue. The plaintiff was familiar with this crossing and before the collision "he had noticed that trolley cars usually stopped." As the plaintiff was travelling northerly on Coburn Avenue this "stop" sign was at his left and in the direction from which the trolley car came which was in collision with the plaintiff's automobile. When the plaintiff was fifty feet from the tracks, moving at the rate of fifteen to twenty miles an hour, he looked to his left and could see twenty to thirty feet beyond Alvarado Avenue - a distance of two hundred thirty feet up the defendant's tracks. He saw no trolley car on the defendant's tracks. Thereafter he slowed down to ten or fifteen miles an hour, looking to his right "to see if there was a car coming up from the Lake." While going ten or fifteen miles an hour and distant five or six feet from the tracks, he first saw the trolley car "right around ten feet to his left" and at a point just where the gutter would be if there were a sidewalk on Coburn Avenue at his left. When he saw the car, in his opinion it Was going twenty to twenty-five miles an hour, but it slowed down to ten or fifteen miles an hour as it approached Coburn Avenue. It did not stop at the crossing, "no whistle was sounded or gong sounded or

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any other signal given by the trolley car." The plaintiff, to avoid being hit head on, swung his automobile to the right. It was struck by the trolley car opposite the left front door, forced around further to the right, and again struck in the rear and pushed against a post.

On the above facts there can be no serious contention that the failure of the defendant's motorman to stop at the "stop" sign was not evidence of his negligence which warranted a finding that the failure to stop was the direct cause of the collision which otherwise would not have occurred. In the circumstances attending the collision, the defendant contends that when the plaintiff looked to his left the trolley car must have been in plain sight and near at hand and that therefore the case is within the rule of Pigeon v. Massachusetts Northeastern Street Railway, 230 Mass. 392, and kindred cases, cited in its brief, and that the plaintiff was careless as matter of law.

The jury could have found without affirmative testimony that while the car should have been seen, a reasonably prudent and careful man who had knowledge of the "stop" sign and had noticed that trolley cars were usually stopped at the entrance to Coburn Avenue would to some extent rely upon the fact that such a sign required that all trolley cars should be stopped before entering Coburn Avenue and that the motorman would observe the instruction and would give some warning of the approach of the trolley car. Indeed, when the plaintiff looked, the car may have been so far away that a reasonably prudent and careful man if he had looked and seen it, would have been justified in deciding that he could cross in safety. "Careless looking for a street car prevents recovery only when the approaching car is so near or coming at such speed that if the plaintiff had looked carefully it would be contributory negligence as matter of law for him to cross in front of it." Walker v. Boston Elevated Railway, 266 Mass. 141, 145. Jeddrey v. Boston & Northern Street Railway, 198 Mass. 232. The facts did not warrant a ruling that the defendant

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was not negligent or that the plaintiff was guilty of contributory negligence. In the opinion of the majority of the court it follows that the entry must be

Exceptions overruled.

Judgment on the verdict.