189 Mass. 583 | Mass. | 1905
At the time of the accident the parties were travellers upon the highway, the plaintiff on foot, the defendant in his automobile. Their respective rights and reciprocal duties have been often defined that although each had the right to pass and repass, neither could so negligently exercise this right as to injure the other. O’Brien v. Blue Sill Street Railway, 186 Mass. 446, 447, and cases cited. Having come into collision, the usual questions of due care on the part of the plaintiff and negligence of the defendant are raised.
Ordinarily these are issues of fact for the jury. Purtell v. Jordan, 156 Mass. 573. And no facts are disclosed in the present case to take it out of this general rule.
The plaintiff desiring to become a passenger on an electric car which was about to pass on the opposite side of the street gave the usual signal. When the car stopped she started to
It cannot be said that there was a balancing of probabilities by the plaintiff, with a willingness to take the risk of safely getting over, before the defendant came up, as might have been the fact in Whitman v. Boston Elevated Railway, 181 Mass. 138. Or where in a spirit of apparent indifference plaintiffs voluntarily have exposed themselves to the chance of serious injury. Kelly v. Wakefield Stoneham Street Railway, 175 Mass. 331. Hurley v. West End Street Railway, 180 Mass. 370. Creamer v. West End Street Railway, 156 Mass. 320. Mathes v. Lowell, Laivrenee & Haverhill Street Railway, 177 Mass. 416. Donovan v. Lynn & Boston Railroad, 185 Mass. 533. Judge v. Elkins, 183 Mass. 229.
If she had seen the defendant’s machine approaching, and decided it was sufficiently distant to enable her safely to pass she might have been found by the jury to have exercised due care, though the accident proved that her judgment was erroneous. Coleman v. Lowell, Lawrence & Haverhill Street Railway, 181 Mass. 591.
The defendant puts much emphasis on her language that “ she did not see any automobile coming,” contending that she had seen it arrive and come to a stop before she attempted to cross. But it was for the jury to interpret her meaning, and also to determine how far any failure by her to more fully and carefully observe the amount or kind of travel in the street was indicative of such want of care as ought to bar her recovery. Wrinn v. Jones, 111 Mass. 360. Williams v. Grealy, 112 Mass. 79. Schienfeldt v. Norris, 115 Mass. 17. Carland v. Young, 119 Mass. 150. Bowser v. Wellington, 126 Mass. 391. Shapleigh v. Wyman, 134 Mass. 118. Benjamin v. Holyoke Street Railway, 160 Mass. 3. Murphy v. Armstrong Transfer Co. 167 Mass. 199. McCrohan v. Davison, 187 Mass. 466.
There is no imperative rule of law which has been called to
It has, indeed, been held that a traveller upon a highway knowing that it is crossed by a railroad at grade, who passes on to the crossing without looking to ascertain if a train is coming, and is thereby injured, is guilty of such contributory negligence as to preclude his recovery. Butterfield v. Western Railroad, 10 Allen, 532.
The reason for this rule was stated by Mr. Justice Morton in Allyn v. Boston & Albany Railroad, 105 Mass. 77, to be that, “ A railroad crossing is a place of danger, and common prudence requires that a traveller on the highway, as he approaches one, should use the precaution of looking to see if a train is approaching. If he fails to do so, the general knowledge and experience of men at once condemn his conduct as careless.”
Outside, however, of such excepted portions as may be crossed at grade by a railroad, this requirement has not been applied to travellers in their daily and common use of our highways.
The usual rule of ordinary care does not impose upon them the burden of being constantly on the lookout to see if their path is free from dangerous defects, or in a state of apprehension of personal injury from other travellers. The traveller not only has a right to presume that the way is reasonably fitted for his use, but also that those who may be lawfully using it with himself will exercise a proper degree of care. McGuinness v. Worcester, 160 Mass. 272, 273, 274, and eases cited. Kerr v. Boston Elevated Railway, 188 Mass. 434. See Doyle v. West End Street Railway, 161 Mass. 533, 542.
The defendant’s explanation of the accident as the result of the plaintiff’s contact with the automobile after it was at rest, which caused her to fall and break her arm, should be examined in connection with all the evidence. This shows that she and her companion were seen by him when at a distance of fifty feet, and he knew that having signalled the car, they were about to cross the street. It is true he also stated that because he
While the rulings requested, therefore, were properly refused, the defendant had the benefit of a specific instruction that if the jury found the automobile was stopped before the collision the plaintiff could not recover, and it is not an error of law if they did not accept his theory.
Exceptions overruled.