303 Mass. 420 | Mass. | 1939
This is an action of tort to recover compensation for personal injuries sustained by the plaintiff as a result of being crushed between two trains of the defendant. The jury returned a verdict for the plaintiff and the case now comes before us on the defendant’s exceptions to the denial of its motion for a directed verdict, and of its motion that a verdict be entered for it under the leave reserved by the judge. It is rightly stated in the bill of exceptions that there was evidence from which the jury could have found negligence on the part of the defendant which "contributed to the plaintiff’s injuries.” The only question now in issue is whether the evidence requires a ruling that the plaintiff was guilty of contributory negligence as matter of law.
There was evidence that on November 5, 1935, at about 8:20 a.m., the plaintiff was a passenger on a train of the defendant which was bound from Harvard Square to Water-town. The train was proceeding along Mt. Auburn Street, in Watertown. It stopped at Winthrop Street, a regular
The burden of proving contributory negligence on the part of the plaintiff rested on the defendant, G. L. (Ter. Ed.) c. 231, § 85, and a verdict for the defendant could be directed by the judge only if the evidence by which the plaintiff was bound required a conclusion as matter of law
The defendant has argued that when the plaintiff reached the left front corner of the outbound train, before she turned to her left and took a position by the left front door of that train, she should have looked again at the condition of traffic and that, if the condition was such that she could not have continued safely, she still would have been able to go to the sidewalk at her right. The evidence, however, would warrant the jury in finding that the plaintiff did look at the condition of traffic when she took a position by the left front door of the outbound train, but was not able to retreat, since, when she started to retrace her steps, although the motorman had seen her as she crossed in front of that train, it started to move forward. The fact that when the plaintiff stopped between the tracks automobiles were approaching too rapidly to permit her to proceed does not establish that she was negligent when she started to cross the tracks. The jury could find that these vehicles were travelling at a very rapid rate of speed.
We think that the case is governed by McBride v. Middlesex & Boston Street Railway, 276 Mass. 29. The defendant, however, seeks to distinguish that case on the ground that there the plaintiff attempted to cross the street in such circumstances that it could not be said as matter of law that his conduct was negligent, since he did not see the
We are of opinion that the issue of the plaintiff’s due care presented a question for the jury and that the defendant’s motions were properly denied.
Exceptions overruled.