217 Mass. 163 | Mass. | 1914
The jury upon conflicting evidence could find, that the plaintiff, a pedestrian, was injured while on the cross walk, and, the defendant not having contended that there was no •evidence of its negligence, the questions for decision are whether as matter of law the plaintiff was careless and whether there was error in the admission of evidence. The testimony warranted a finding, that as the plaintiff stood on the sidewalk in the early evening of a hazy or misty night intending to pass over the cross walk, a “long two horse team” came by going in the direction from which the car subsequently came. After the team had passed, ■and before attempting to cross, she looked to see whether a car was approaching, and seeing none started over, when upon reaching the farther rail the car struck her.
The rights of pedestrians and of a railway company in the concurrent use of the public ways have been too often defined to require repetition. The care required of the plaintiff was the precaution of the ordinarily prudent traveller. It is true she was accustomed to travelling in electric cars, and had observed that at street crossings a bell was rung or gong sounded, and that at the place of the accident cars ran only in one direction. The fact that she did not look for a car until the team had passed, and that when she looked the team may have obstructed her vision, and that she did not look again before the collision, are circumstances bearing upon her conduct, but they are not conclusive. It
The jury could find that the gong was not rung, nor any warning given, although the car was running at high speed over a straight track with the crossing in full view of the motorman. It is settled that, while not excused from using her own senses of sight and hearing, the plaintiff had the right to assume that the motorman would give the usual warning and so would slacken the speed as to protect travellers whose presence at the crossing in the operation of the railway might be expected. Kerr v. Boston Elevated Railway, 188 Mass. 434, 436. Murphy v. Boston Elevated Railway, 204 Mass. 229, 232, 233. Rogers v. Phillips, 206 Mass. 308. Nelson v. Old Colony Street Railway, 208 Mass. 159. Mullen v. Boston Elevated Railway, 209 Mass. 79, 80. It is plain, that what was ordinary care under all the conditions disclosed by the record was a question of fact which the presiding judge rightly left to the jury. Berry v. Newton & Boston Street Railway, 209 Mass. 100, 103.
The statements of the plaintiff when describing her conduct, that she “waited for that team to go by sufficiently far to see that there was not any car approaching,” to the admission of which the defendant excepted, was not a conclusion of the witness upon an issue of fact solely within the province of the jury. It was simply a description of what she observed, coupled with her judgment, formed at the time, that because of the opportunity afforded the use of the cross walk appeared to her to be free from danger. Malcolm v. Fuller, 152 Mass. 160. Ahearn v. Boston Elevated Railway, 194 Mass. 350, 355. Robinson v. Springfield Street Railway, 211 Mass. 483, 485.
Exceptions overruled.
