Thompson v. Boston Elevated Railway Co.

227 Mass. 407 | Mass. | 1917

Braley, J.

The defendant’s counsel states in his brief, that the plaintiff’s statements as to his movements after he left the sidewalk "are so conflicting and contradictory on all essential points that it is very difficult to summarize his testimony” given in his direct, cross, redirect and recross examination. But the contradictory statements were for the consideration of the jury unless they rejected his entire evidence, and the verdict in his favor must stand if warranted by any material aspect of his testimony. Tierney v. Boston Elevated Railway, 216 Mass. 283. Kerr v. Shurtleff, 218 Mass. 167, 170. Hooper v. Bay State Street Railway, 218 Mass. 251, 255. Cleary v. Cavanaugh, 219 Mass. 281, 285.

We are not concerned with the credibility of witnesses, or the weight of evidence, and the jury on the plaintiff’s direct and redirect examination would have been justified in finding, that on the morning of the accident he left his house intending to take an inbound car, and upon reaching the sidewalk on East Fourth Street looked to his right to see if his car, which would come around P Street into East Fourth Street, had arrived, and then looking to his left saw at the other side of O Street an outbound car about two hundred yards away. He then stepped off the curbstone “ leisurely in a kind of curved fashion,” and while in the space between the curb and the nearest rail he looked to the left toward the outbound car which had crossed O Street and was about fifty yards away, while the inbound car had stopped “just around the corner,” at the white post where all cars “always slow up before coming there at all and always stop.” And as the plaintiff, who knew of this custom and “took this fact into consideration” and “expected this car to slow up,” kept on his way turning his “head sideways” to look back, he was struck by the outbound car while “just stepping over there, the outer track.” A further finding would have been warranted that after he looked the second time, he looked a third time “when he was about to step over the second rail and saw the car, and could not tell how far away it was from him, and at that time he had no apprehension of danger. The car struck him right after that; that he was clearing the rail when the car struck him; that he heard the car coming along but heard no bells; that a bell was not rung.” If when pressed in recross-examination he may have substantially contradicted what he previously had said descriptive of his conduct, upon further redirect-examination he testified, “that at the time when he last looked he could not tell how far away the car was, he felt he could safely get across and kept going along and got hit by the car while starting to cross the further rail, and at that time he started to look around.” It may be as the event proved that the plaintiff erred in judgment. But the jury could say there was no indifference or willingness to take chances which led him to step in front of an oncoming car and to expose himself to the hazard of serious injuries.

A majority of the court are of opinion that it could not have been ruled as matter of law that a pedestrian who attempts to pass diagonally over the tracks of a street railway where the car is seen by him fifty yards away and is expected to slacken speed preparatory to a full stop when crossing the line of intersection of the track and the course of the traveller, is guilty of contributory negligence. O’Brien v. Lexington & Boston Street Railway, 205 Mass. 182, 184, 185. Hunt v. Old Colony Street Railway, 206 Mass. 11, 13. Albee v. Boston Elevated Railway, 209 Mass. 6. Lunderkin v. Boston Elevated Railway, 211 Mass. 144. O’Toole v. Boston Elevated Railway, 211 Mass. 517.

Exceptions overruled.