104 Mass. 108 | Mass. | 1870
The plaintiff must show, by positive evidence, in cases of this description, that he was in the exercise of due care, and that his want of it did not contribute to the injury of which he complains. If, as a matter of common knowledge and experience, the court can see that, upon all the undisputed facts, the plaintiff was not in the exercise of ordinary care, and that the injury he received was in part attributable to his want of it, the jury may be properly told, as matter of law, that he cannot recover. But the question of ordinary care is, in most cases, even where the facts are undisputed, a question of fact, which it is peculiarly the province of the jury to settle, under proper instructions.
A person who attempts to cross a railroad track, under any circumstances, can hardly be said to be in the exercise of due care, unless he takes reasonable precaution to assure himself, by actual observation, that there are no approaching cars upon it. But the degree of caution he must exercise will be affected by the situation and surrounding circumstances. If he is a passenger passing from the station-house in the direct and usual course to enter cars which are waiting to receive passengers, and obliged by the location of the tracks to pass over a track that is unoccupied, he has a right to rely to some extent upon proper and usual signals of warning, to be given by trains or cars passing the unoccupied track at such a place and under such circumstances.
In the case at bar, the plaintiff was a passenger, and the defendants were bound to afford the security and protection to which he was entitled in that relation. The arrangement of the
There is evidence in this, that the plaintiff, in the act of crossing, was thoughtful of the danger to which he was exposed, and was in the exercise of some degree of care with reference to it. Whether it was due care under all the circumstances, applying as the measure of due care the rule that it must be such care as men of common prudence usually exercise in positions of like exposure and danger, was a question for the jury. It cannot be maintained, as matter of law, that the plaintiff was negligent in not looking up and down the track at the moment when, in a dark night, he stepped from the platform upon it. He had assured himself shortly before, by looking each way, that there was no car approaching which would make the crossing hazardous. His attention, with due regard to his own safety, may have been properly turned for the instant, to see if there was any obstruction before him on the track, or excavation in his way, or danger of collision with other passengers passing to or from the cars. Gaynor v. Old Colony & Newport Railway Co. 100 Mass. 208. Warren v. Fitchburg Railroad Co. 8 Allen 227. Forsyth v. Boston & Albany Railroad Co. 103 Mass. 510,
Exceptions overruled.