208 Mass. 134 | Mass. | 1911
While the plaintiff was in a safe position between the inward and the outward bound tracks of the defendant’s railway, having crossed the former track upon his way across the street, he saw a car approaching him upon the outward track at a distance from the cross walk on which he stood, which he put at from ten to fifteen feet, but which upon the testimony of Hanley and the distances shown upon the plans that were in evidence, the jury might have found to be twenty or possibly thirty feet. He went on in front of the car, which also kept on without any apparent abatement of its speed, until he had stepped upon the outward track, or just before that, when he testified that he thought it “ kind of slowed down.” He was struck by the car and was injured. On cross-examination he said that when he last saw the car it was going practically as fast as when he first saw it, and this was “ a pretty good clip,” which he defined as “ a good horse trot.” His other witness put the speed of the car at eight or ten miles an hour.
If this were all of the case, it would be plain that he was not in the exercise of due care, and that the verdict for the defendant was rightly ordered. One who without excuse steps in front of a swiftly moving car already so dangerously near to him cannot recover for an injury to which he has .thus contributed. We need refer only to a few of the many cases which have established this proposition. Mathes v. Lowell, Lawrence & Haverhill Street Railway, 177 Mass. 416. Madden v. Boston Elevated Railway, 194 Mass. 491. Casey v. Boston Elevated Railway, 197 Mass. 440. Rundgren v. Boston & Northern Street Railway, 201 Mass. 156. Cohen v. Boston Elevated Railway, 202 Mass. 66.
But the plaintiff testified further that when he saw the oncoming car “ he paused to see if he would have a chance to get by, and after pausing looked around to the motorman, and that the motorman gave a distinct nod in the direction from the plain
It is contended for the plaintiff, and in our opinion the jury could have found, that-in attempting to cross the track he was acting upon what he properly believed to be the invitation of the motorman, and that this was an assurance that he could cross with safety, such as in the exercise of reasonable prudence he had the right to act upon. He might believe that the motorman, having given him this invitation and assurance, at once would check the speed of the car so as to allow him the few seconds that were needed. If he saw the motorman turn his hand, the jury could infer that this was done in turning the brake handle for that purpose, and that this, accompanying the nod of the head, was a further assurance of safety. It is not unusual for persons having occasion to cross the streets in the neighborhood of cars, automobiles or other rapidly moving vehicles, to receive and to rely upon such signals from motormen, chauffeurs or drivers. . That the speed of the car was perhaps not diminished after he stepped upon the track does not affect the question of what he had a right to expect when he went upon the track. In O' Brien v. Lexington Boston Street Railway, 205 Mass. 182,184, some stress is laid upon a signal given by a nod of the head.
In view of the exclusion of the plaintiff’s testimony in answer to the inquiry whether he thought there was any danger in doing as he did (see Jeddrey v. Boston Northern Street Railway, 198 Mass. 232, 235), it cannot be argued that he did not rely upon what he saw or thought he saw done by the motorman.
The defendant has not contended that if the plaintiff was in the exercise of due care, there was not evidence of its negligence.
The case is very close; and it may be that the weight of the evidence is against the position of the plaintiff. We are of opinion, however, that there was some evidence tending to show
Upon the terms of the report and the stipulation of the parties, judgment must be entered for the plaintiff for the sum therein stated.
So ordered.
