200 Mass. 470 | Mass. | 1909
The plaintiff seeks in this action of tort to recover for personal injuries received by falling into a coal hole, while travelling on a public way in Boston. At about half-past five o’clock, on the afternoon of a snowy day in early January, the plaintiff was walking along Arch Street, when he saw the defendant’s coal team at the sidewalk, and supposed that coal was being delivered from it into a coal hole. He went into the street to go around the horses’ heads, but finding the street slushy, returned to the sidewalk. The plaintiff’s testimony tended to show that the place was dark, that one could see an object, but could not tell a man’s face, that he walked close to the side of the building, and could not see any coal, but saw something black on the sidewalk, close to the rear of the team and a man poking a few pieces of coal left in the cart, and while thus going close to the building so that his shoulder was four or five inches from it, he fell into the coal hole; and that this hole was rectangular, twenty-two inches by thirty-four inches, while the ordinary coal hole is circular in shape, and twelve to fifteen inches in diameter. The defendant strongly argues that there was no sufficient evidence to warrant a finding that the plaintiff was in the exercise of due care, basing this contention largely upon the plaintiff’s statement in his cross-examination that he “ went around the team to avoid disaster. The disaster might
The defendant also complains of an illustration given by the judge, as being a charge upon the facts within the prohibition of R L. c. 173, § 80. There was conflicting evidence as to whether the plaintiff had been warned of danger by the defendant’s driver. One issue apparently was whether any warning, if given, was timely or too late. The illustration given is not open to objection. While it was picturesque and pointed, it was apposite to the evidence which the jury were to consider and to one of the questions which they must pass upon. It falls within the authority of the court in charging a jury, as stated at length in the cases of Whitney v. Wellesley & Boston Street Railway, 197 Mass. 495 and Plummer v. Boston Elevated Railway, 198 Mass. 499. These principles have been so recently and so fully discussed that it is not necessary now to amplify them further.
Exceptions overruled.