197 Mass. 420 | Mass. | 1908
The only question that need be considered in this case is whether there was any evidence that the plaintiff was in the exercise of due care at the time of the injury. He was laying crushed stone on the surface of Massachusetts Avenue between the curbstone and a line of paving stones which projected a distance of eighteen inches outside of the defendant’s tracks. His work did not bring him between those tracks, or within eighteen inches of them. There was affirmative evidence that the overhang of the defendant’s cars was not beyond that distance, and no claim was made to the contrary. Cars frequently passed; the track was straight and the view was unobstructed for over two hundred feet. The plaintiff was facing in the opposite direction from that in which the cars came; he neither saw nor heard the car before it struck him; h¿ did not know whether he was standing still or moving just before it struck him, though he thought that he was moving but could not say whether towards the track or away from it. He testified also that at the time of the accident he could stand where he pleased as he worked; that he was not thinking at all whether he was so near the track that a car might hit him; that he did not have that in his mind at all.
If this were all the evidence, it would be impossible to avoid the conclusion that the plaintiff was taking no care whatever or acting with any regard to his own safety, but was relying wholly upon the defendant to look out for him. The case would be like Gorham v. Milford, Attleborough & Woonsocket Street Railway, 189 Mass. 275, and Quinn v. Boston Elevated Railway, 188 Mass. 473. There was no evidence of such pre
But the plaintiff testified also “ that he had worked in that locality for some weeks, and that he had noticed it was customary for cars to ring their gongs when men were near the track, but that for hours at a time he would not notice whether the cars rang their gongs or not, but that when he did notice, the cars rang their gongs when men were near the track.” And it is claimed that the jury might find that he had a right to rely upon this practice and to expect to be warned by the gong of an approaching car, if he was in dangerous proximity to the track. But this evidence falls far short of indicating any established custom, or of showing any excuse for a failure to use his own senses for his protection. There was similar evidence of a failure to ring the gong in Quinn v. Boston Elevated Railway, ubi supra. There was nothing to prevent the plaintiff, while doing his work, either from standing where a car could not have hit him or from taking such a position as to see readily when a car was approaching. Due care required that he should not leave all concern for his safety to the defendant. He was not at work on the defendant’s premises under an implied assurance of safety, as in Maguire v. Fitchburg Railroad, 146 Mass. 379 ; nor was there any evidence of a duty or an established custom for the defendant or its superintendent to give notice of the approach of a car, as in Meadowcroft v. New York, New Haven, & Hartford Railroad, 193 Mass. 249, and cases there cited; ñor had he a right to expect a warning from his own foreman, as in Ahearn v. Boston Elevated Railway, 194 Mass. 350.
Although there was evidence of negligence on the part of the defendant, yet, by reason of the plaintiff’s failure to exercise" proper care, the defendant’s request for a ruling that the plaintiff was not entitled to recover should have been granted.
Exceptions sustained.