201 Mass. 339 | Mass. | 1909
In their, concurrent use of the public way at the time of the accident, the plaintiff’s intestate as a pedestrian and the defendant’s servant as the driver of the team were each required to exercise reasonable care to avoid injury to the other. But, they having come into collision, the defendant contends that there was no evidence for the jury of the due care of the decedent, who was thrown down and injured, or of the negligence of the driver, for whose acts he is responsible. It was undisputed that he was struck while rightfully using the street, even if he passed diagonally over instead of keeping on and using the crosswalk. The defendant urges that there was evidence which tended to show that the decedent neither looked nor listened for approaching vehicles, and ran into the team, and the driver, who was coming on the westerly side, testified that the decedent looked up, and should have seen the team when it was about fifteen feet distant. At that time he was crossing to the easterly side of the intersecting street, and must either turn back or go forward, and even if he saw and kept on, the jury could say that according to common experience he had no reason to anticipate that he would be run down, but that, having been seen, he could proceed in safety. MoOrohan v. Davison, 187 Mass. 466. In their description of the accident the plaintiff’s witnesses substantially said that the decedent walked looking straight ahead, and apparently was run into by the horse striking him in the back. A heavy rain, however, was falling, which might have caused observation as to the use of the street by others on each side of his line of travel', not only to be inconvenient, but indistinct. It was for the jury to decide upon conflicting evidence whether a failure to take further precautions rendered the decedent’s conduct careless and contributed to his
Exceptions overruled.