177 Mass. 416 | Mass. | 1901
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
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.