224 Mass. 303 | Mass. | 1916
This is an action of tort for the death of the plaintiff’s intestate, not a passenger, alleged to have been caused by the negligence of the defendant. In order to recover, there must be affirmative proof that the decedent was actually looking out for his personal safety at the time he was injured, and so was in the exercise of due care within the meaning of these words in St. 1906, c. 463, Part I, § 63, as amended by St. 1907, c. 392, § 1. McCue v. Boston Elevated Railway, 221 Mass. 432. Gaffney v. Bay State Street Railway, 221 Mass. 457. Raymond v. Worcester Consolidated Street Railway, 222 Mass. 396.
The undisputed facts leave the question of the decedent’s due care after he saw the car from the sidewalk a matter of pure conjecture, and fail to prove that he was actually looking out for his own safety. This is fatal to a recovery on any count of the declaration. See Callaghan v. Boston Elevated Railway, 200 Mass. 450; Haynes v. Boston Elevated Railway, 204 Mass. 249.
There was evidence of negligence on the part of the defendant in that its motorman permitted the car to coast across A Street under the then existing conditions.
We need not decide whether that part of the charge
The request numbered two, that “There is no evidence which would warrant the jury in finding that the plaintiff was in the exercise of due care” should have been given. The exceptions must be sustained and judgment entered for the defendant under St. 1909, c. 236.
So ordered.
Of White, J., who presided at the trial.