220 Mass. 193 | Mass. | 1915
The issue of the motorman’s negligence rightly was submitted to the jury. He earlier had seen the employees of the gas company excavating the trench, which extended from the sidewalk to and under both sets of tracks. He testified that as he approached it at the time of the accident he saw a man digging in a hole between the two tracks. Presumably this was the plaintiff, who was working at that place. And the jury could accept the plaintiff’s statement that the car came down on him at a high rate of speed, without sounding a warning gong, and did not stop until it reached the next stopping place at Lake View Avenue.
On the issue of due care, however, the case is governed by Quinn v. Boston Elevated Railway, 188 Mass. 473, and Kelly v. Boston Elevated Railway, 197 Mass. 420. The plaintiff was working in close proximity to tracks upon which cars were frequently passing; he was fully aware in advance of the precise danger to which he was exposed and from which later he suffered, and was relying entirely on the exercise of his own faculties to guard him from injury. The trench was only two and a half feet deep. The day was bright and clear. He was facing in the direction from which came the car that struck him, and had an unobstructed view of three hundred yards. Although he heard the noise of the approaching car “coming closer and closer to him” at a high rate of speed, he did not look up from his work,
Exceptions sustained.
