Mathes v. Lowell, Lawrence & Haverhill Street Railway, 177 Mass. 416

Mathes v. Lowell, Lawrence & Haverhill Street Railway

177 Mass. 416 | Mass. | 1901

Barker, J.

The verdict for the defendant was ordered rightly, because there was no evidence from which it could be found that the plaintiff’s intestate was in the exercise of ordinary care.

A foot traveller whose course is across the tracks of a street railway must exercise care to avoid being hurt by the cars and if he is struck by a car and injured or killed there can be no recovery in a suit against the railway company for damages unless the plaintiff shows by affirmative evidence that the traveller was in the exercise of due diligence to avoid injury. And, further, when the whole evidence has no tendency to show care on the part of the traveller, but on the contrary shows, that he was careless, it is the duty of the court to direct a verdict for the defendant. Creamer v. West End Street Railway, 156 Mass. 320, and cases cited. See also Benjamin v. Holyoke Street Railway, 160 Mass. 3; Robbins v. Springfield Street Railway, 165 Mass. 30, 37; Kelly v. Wakefield & Stoneham Street Railway, 175 Mass. 331, 333.

The evidence tended to show that the plaintiff’s intestate," a woman, was struck' by the car as she was attempting to cross *421the street in the centre of which was the car track. The width of the street between the sidewalks was forty feet, and that of the track four feet eight and one half inches. In attempting to cross the street the deceased was walking from the northerly curbstone toward the south, the street running east and west and the car going from east to west. From the northerly curb to the northerly rail of the track the distance was seventeen and one half feet. The accident happened in the forenoon of a clear, bright winter morning. A few days before there had been a heavy fall of snow, and the surface of the street was covered with snow. It had been removed partially from the part of the street northerly of the car track, but was still very deep and lay in piles close to the track upon its southerly side, and on each side of the track the surface of the snow was above the rails and slanting away from each rail. Another street joined the one in which was the car track, at right angles, from the north, and a cross walk of flag stones led from the sidewalk at the easterly corner made by the joining of these two streets across the street in which was the track. Five of the witnesses called testified that they saw the accident. Of these witnesses two did not see the deceased until she was in collision with the car or nearly so, but each of the other three testified to seeing her upon the sidewalk at the corner of the two streets. The first of these witnesses after seeing the deceased upon the sidewalk at the corner next saw her under the car. The next witness, a school girl of fifteen, testified that she saw the deceased standing on the corner looking up the street toward the car, the attention of the witness being called to the deceased by the gong of the car. She also testified that when she first saw the deceased the latter was on the crossing just off the curbstone, and that when the deceased started from the sidewalk she ran diagonally across the street and was two or three feet west of the cross walk when the car struck her, and that she ran diagonally as though to get around the car. The third witness testified that he saw the deceased when she stood on the crossing, and that he saw her start to walk across the street, and that she was struck when very near the centre of the track; that he did not think she was running but she walked very fast, and when she left the curbstone was walking at a very brisk *422pace. The fourth witness did not see the deceased before she reached the crossing or as she came on the track, but heard the gong on the car struck very rapidly and looked around and saw the car strike the deceased just as the witness looked around. The attention of the fifth witness was first attracted by hearing the gong, and the next thing this witness saw was the deceased swaying back and forth when the car struck her, as though she was trying to get off the track one way or the other and was doubtful whether she should go forward or back.

Upon the evidence the approaching car was in plain sight from the corner where the deceased left the sidewalk to cross the street. It was approaching at the rate of from fifteen to eighteen miles an hour, which was its ordinary rate of speed, and although one of the witnesses testified that he did not remember hearing the gong, there can be no contention that it was not sounded.

One reasonable inference from the evidence is that the deceased left a place of safety upon the sidewalk in order to hurry across the street before the car should reach the crossing, and knowing that it would be necessary to hurry if she expected to avoid being struck by the car. But even if this is not the only reasonable conclusion, there is on the evidence no ground for an inference that the deceased exercised' care to avoid danger. As such care could not be found the verdict for the defendant was ordered rightly.

_Exceptions overruled.