Raymond v. Worcester Consolidated Street Railway Co.

222 Mass. 396 | Mass. | 1916

Braley, J.

It has been repeatedly held in actions under R. L. c. Ill, § 267, now St. 1906, c. 463, Part I, § 63, as amended by St. 1907, c. 392, for negligently causing the death of a person not a passenger, that in order to recover there must be some positive affirmative evidence of the due care of the decedent at the time of injury. Donaldson v. New York, New Haven, & Hartford Railroad, 188 Mass. 484, 486, and cases cited. Mathes v. Lowell, Lawrence, & Haverhill Street Railway, 177 Mass. 416. If no direct testimony is available, evidence of all the circumstances when sufficiently full may be enough to warrant the inference of due care. Butler v. New York, New Haven, & Hartford Railroad, 177 Mass. 191.

In the present action under this statute it could be found that the decedent frequently boarded the cars at a certain white post; and the jury on the testimony of those who observed her movements from different points of view could have found properly that, intending to take the car at the post, she started to cross from the opposite side of the street, and that, when she reached the middle of the track on which the car was approaching that she intended to take, the car strúclc and killed her. The track in the direction from which the car came was visible for a very considerable distance. If she had looked before attempting to cross, the car should have been plainly in sight approaching rapidly on a down grade, although the rate of speed is not stated. But, if seen by one witness “waving her hand” as she came from a side street into the street where the cars ran, all she is shown to have done is insufficient to warrant an inference that, seeing the car, she concluded from the distance between it and the post that there was sufficient time to pass in safety. It is only on this ground, even if the event proved that she was mistaken in judgment, that the decedent as a traveller could be found to have used ordinary care. Hennessey v. Taylor, 189 Mass. 583, 585.

The most favorable view of the testimony fails to cover this decisive question either directly or inferentially. It is left wholly to conjecture, and the verdict for the defendant was ordered rightly. Gleason v. Worcester Consolidated Street Railway, 184 Mass. 290. See St. 1914, c. 553; Gorham v. Milford, Attleborough & Woonsocket Street Railway, 189 Mass. 275.

Exceptions overruled.