187 Mass. 493 | Mass. | 1905
The plaintiff was driving, upon Boylston Street in Brookline, toward Boston, on the night of July 3, 1901, a heavy, open, empty furniture wagon drawn by two horses, and as he approached Wright’s Hill, on the right hand side of the two tracks of the electric railway, he saw lights and a barrier across that part of the street, in front of him, which made it necessary to cross over to the left hand side. The left hand side of the street and the portion on which the tracks were had been, cut down and graded at that point, but the work had not been done on the right hand side. Just in front of him there was a curve in the street, and a slightly ascending grade as he went toward Boston, and the hill, which had not then been cut away, was very near the tracks on the right hand side, so that it was impossible to see the tracks for any considerable
We are of opinion that the evidence presented a question of fact for the jury. With such a team, it would take considerable time to pass from the point of entrance upon the right hand track to a point beyond the line of the left hand track. In passing in the ordinary way, the plaintiff would all the time be going nearer the approaching car. Upon the evidence, we can well believe that only a very short time would elapse after the car came in sight around the curve beyond the hill, before it would be upon him. It was in the evening, there were no lights along the road, and there were woods at the right hand side of the hill. Although he said in one part of his testimony that he heard a noise, looked quick, and that the car was within six feet of him, the jury might well believe that it was impossible for him to estimate this distance with accuracy, and that his
Judgment on the verdict.