197 Mass. 440 | Mass. | 1908
There was evidence tending to show that the defendant’s servants were guilty of negligence in the running of the car that struck the plaintiff, and the only question which need be considered is whether the plaintiff could have been found to be in the exercise of that degree of care which is properly to be expected from a child of her years. In this respect the case resembles Stackpole v. Boston Elevated Railway, 193 Mass. 562. The plaintiff knew that the car was approaching her; she thought that she had time enough to cross in front of it if she hurried, and made up her mind to do so. So she went, apparently with haste, past two men, the witnesses Young and Brogie, who had stopped for this car to pass, stepped upon the rails, and was immediately struck by the car. She had been going over this place four times a day for about two years, and had become well acquainted with it. There was some evidence that the gong of the car was not sounded; but this did not affect her conduct, for she had seen the car; she was not misled by the other car’s passing in front of it; it was in plain sight to her, with nothing to prevent her seeing it as she came near to the track on which it was running; she could have stopped instantly if she had desired. The direct cause of the accident was that which she herself assigned in her testimony: “ I tried to get across in front of it — that is the way I got hurt.” As in Madden v. Boston Elevated Railway, 194 Mass. 491, she took her chance; and it does not help her that this was the very chance which her father and mother had often told her not to take. The case against her is the stronger because, as she also testified, she was not frightened, knew just how the car was coming, and just what the danger was if she got struck. It is impossible to say that she was exercising any care. Holian v. Boston Elevated Railway, 194 Mass. 74, and cases there cited.
In accordance with the terms of the report, judgment must be entered for the defendant.
So ordered.