Harris v. Fitchburg & Leominster Street Railway Co.

193 Mass. 56 | Mass. | 1906

Morton, J.

This case comes here on exceptions by the defendant to the refusal of the judge to rule that on all of the evidence the plaintiff was not in the exercise of due care. That is the only question presented by the bill of exceptions.

The plaintiff testified, amongst other things, that as he came down School Street he looked up West Street at the only place where he could look over the Pierce estate and saw no car approaching; that as he went into West Street he looked again and saw no car; that he was driving slowly ; and that when the horse got on to the track he looked again and then saw the car approaching and urged the horse ahead thinking that he could get across the track and did so, with the exception of the rear part of the wagon and the hind wheel which were struck by the car. He further testified that as he came down School Street into West Street he listened and heard no sound or warning of an approaching car. This testimony if believed would warrant a finding that he was in the exercise of due care. The distance at which a car could be seen or ought to have been seen on West Street from School Street was a circumstance to be taken into account and given such weight as the jury thought the fact as they found it justly entitled to. It is to be assumed that proper instructions were given as to what would and would not constitute due care on the part of the plaintiff. We think that it could not be ruled as matter of law that the plaintiff was not in the exercise of due care, and that the instruction requested was rightly refused. See Orth v. Boston Elevated Railway, 188 Mass. 427; McCarthy v. Boston Elevated Railway, 187 Mass. 493; Evensen v. Lexington & Boston Street Railway, 187 Mass. 77; Kelly v. Wakefield & Stoneham Street Railway, 179 Mass. 542; Lahti v. Fitchburg & Leominster Street Railway, 172 Mass. 147; Driscoll v. West End Street Railway, 159 Mass. 142.

Exceptions overruled.