Many, if not all, are appended in a footnote.Peabody v. Haverhill, Georgetown Danvers Street Railway, 200 Mass. 277, 280. Lundergan v. New York Central Hudson River Railroad, 203 Mass. 460, 465.
Commonwealth v. Sherman, 191 Mass. 439. Gochee v. Wagner, 257 N.Y. 344. Smith v. Wells, 326 Mo. 525. There was not here such contrary evidence as to prevent the trial judge's drawing that inference, which was aided by the fact of the relationship of parent and minor child. Peabody v. Haverhill, Georgetown Danvers Street Railway, 200 Mass. 277, 280. The finding that the plaintiff's son was her agent in the operation of the automobile at the time of the collision with the further finding that he was negligent required the finding for the defendant.
The jury could find on the evidence that she was his guest, and exercised no control over his actions in operating the auto truck. Peabody v. Haverhill, Georgetown Danvers Street Railway, 200 Mass. 277. The only other question raised is whether Langer's negligence was imputable to the plaintiff on the ground of "voluntary, unconstrained, non-contractual surrender of all care" on her part to his caution.
It was not denied that the plaintiff was a guest of McKean. He was not, therefore, engaged in a joint enterprise with the owner of the automobile, and was not bound by his neglect. Peabody v. Haverhill, Georgetown Danvers Street Railway, 200 Mass. 277, 279. We find no error in the judge's charge taken as a whole.
The judge after carefully directing their attention to the evidence showing the custom on which the defendant relied, and stating as matter of law that if they found the custom existed then the plaintiff made the bailment with knowledge of its existence, left to them the question of whether in reliance on the custom delivery was actually made to the chauffeur as the plaintiff's servant. Peabody v. Haverhill, Georgetown Danvers Street Railway, 200 Mass. 277, 280, and cases cited. The defendant's exceptions to "that part of the charge in which the judge" dealt with the relationship of father and daughter, and "to the entire part of the charge in which the judge" said if the car was delivered to the chauffeur "for the daughter, evidence of custom was immaterial," must be overruled.
There was evidence that as she approached the crossing she was looking toward the house on Alden Street, north of the crossing, in a different direction from the approaching train. Shultz v. Old Colony Street Railway, 193 Mass. 309. Chadbourne v. Springfield Street Railway, 199 Mass. 574. Peabody v. Haverhill, Georgetown Danvers Street Railway, 200 Mass. 277. Lundergan v. New York Central Hudson River Railroad, 203 Mass. 460. As there was no evidence of due care on the part of the decedents, the other questions in the case need not be considered.
He testified that when he first saw the approaching car the driver indicated by his conduct that he also saw it and was attempting to get out of the way of it. We are of opinion that, upon the whole evidence, it was a question for the jury whether the plaintiff failed to do anything for his protection that the exercise of due care required him to do. Peabody v. Haverhill, Georgetown Danvers Street Railway, 200 Mass. 277. Chadbourne v. Springfield Street Railway, 199 Mass. 574. Tennien v. Chase, 201 Mass. 497. Miller v. Boston Northern Street Railway, 197 Mass. 535. Exceptions sustained.
Orth v. Boston Elevated Railway, 188 Mass. 427, 429. The principle of Lundergan v. New York Central Hudson River Railroad, 203 Mass. 460, is not to be applied with the same strictness to travellers in a public street who have occasion to cross the tracks of street railways and who have the right to expect that the street cars will be so driven as not unduly to interfere with the exercise of this public right. Burns v. Worcester Consolidated Street Railway, 193 Mass. 63. Kelly v. Wakefield Stoneham Street Railway, 179 Mass. 542. Hennessey v. Taylor, 189 Mass. 583, 586. Peabody v. Haverhill, Georgetown Danvers Street Railway, 200 Mass. 277. The question of the plaintiff's due care was rightly submitted to the jury.
The cases relied on by the plaintiff which have been already referred to are not at variance with this conclusion. It did not appear in them that there had been a negligent omission on the part of the person injured or killed to look for a train at a time and place when he knew that he could discover by the easy use of his senses that one was approaching, and when there was nothing to excuse this omission. Under the circumstances of this case, Lundergan must bear the consequences of Rogers's negligence. He was not a mere guest of the latter, as in Shultz v. Old Colony Street Railway, 193 Mass. 309; Miller v. Boston Northern Street Railway, 197 Mass. 535; Chadbourne v. Springfield Street Railway, 199 Mass. 574; and Peabody v. Haverhill, Georgetown Danvers Street Railway, 200 Mass. 277. The relation of master and servant existed between these parties, and that is one of the relations excepted in the Shultz case, at page 315. And it was made certain upon the undisputed evidence put in by the plaintiff that just as Rogers trusted entirely to Lundergan to look out for trains coming from the east, so Lundergan relied wholly on Rogers for protection from any trains that might come from the west.
The principles involved in the question were considered at large in the recent case of Schultz v. Old Colony Street Railway, 193 Mass. 309. See also Feneff v. Boston Maine Railroad, 196 Mass. 575, 578; Miller v. Boston Northern Street Railway, 197 Mass. 535; Chadbourne v. Springfield Street Railway, 199 Mass. 574; Peabody v. Haverhill, Georgetown Danvers Street Railway, 200 Mass. 277. Exceptions overruled.