222 Mass. 270 | Mass. | 1915
The plaintiff, while crossing the outbound track of the Boston Elevated Railway Company at the corner of Hunt
After a verdict for the plaintiff, the defendant filed a motion for a new trial and the case is here on the report of the trial judge. Two questions are before us: First, Was the plaintiff in the exercise of due care? Second, Was the ordinance hereinafter referred to admissible?
As we construe the memorandum of the trial judge, we must assume that the headlight of the car which struck the plaintiff was not out, as testified by her, but was lighted. The judge ruled, as matter of law, that the jury could find her to be in the exercise of due care, because “(1) She placed the car upon the wrong track. (2) She placed the car at a much greater distance away than it could by any possibility have been, and hit her. (3) She believed it to be possibly stationary, and, at all events, going in the opposite direction to that in which it was actually going, . . . provided that, as a matter of law, they could so find, without also finding that the headlight upon the car was either missing, or was out; and I rule that, as matter of law, they could so find.”
The judge’s report was made after the hearing on the motion for a new trial and it seems clear from his language in the report of the case for the consideration of this court that he did not think the absence of the headlight a factor in passing on the plaintiff’s care.
The defendant’s motion for a new trial is granted.
So ordered.