125 Mass. 57 | Mass. | 1878
In driving on the highway, the plaintiff was in the exercise of an undisputed right. The defendant, which occupied a part of the highway with its tracks, was bound so to construct
So, too, if there was any evidence from which a jury would be warranted in finding that negligence of the defendant, in the construction or maintenance of its track, caused the injury, the question should be submitted to them, although there might seem to be a preponderance of testimony to the contrary. There was evidence which tended to show that when the plaintiff attempted to turn out of the track of the defendant’s railroad, the .vheel of his wagon was caught under the end of the thick part of the defendant’s rail, which had been cut away so as to leave about five inches space between it and the rail of the Boston and Albany Railroad track, and had been so cut away as to be broken under, and sharper than a right angle. This construction was such that a wagon wheel moving toward it and diagonally across the street, was exposed to the danger of being caught under the projecting end of the rail, whereas, if the rail had been so cut off that the slope was forward and downward, there would
Case to stand for trial.