202 Mass. 463 | Mass. | 1909
At the time of the accident the defendant was operating a single track electric street railway between Reading and Lawrence. The track ran along the westerly side of Main Street through the village of North Reading where the accident occurred. Main Street runs nearly north and south and is crossed by Park Street at approximately a right angle, — the angle of intersection being a little nearer a right angle on the easterly side of Main Street than it is on the westerly side of the street. From a point opposite Park Street, Main Street is straight for about seventeen hundred feet in the direction from which the car came that struck the plaintiff. As one approached Main Street on the westerly side from Park Street, the view in the direction from which the car came was obstructed by trees and bushes. The witnesses did not agree how far one coming out of Park Street and crossing Main Street in an easterly direction could see just before stepping on to the first rail of the track in
It is evident, we think, that the plaintiff must have stepped upon the track almost directly in front of a rapidly approaching car which was in plain sight. He acknowledged on cross-examination that the car must have been in close proximity to him when, as he testified, he looked. The case comes, it seems to us, within the class of cases in which it has been held that the plaintiff if he looked or listened must have done so carelessly and is consequently in no better position than if he had not looked and listened at all. Beirne v. Lawrence & Methuen Street Railway, 197 Mass. 173. Fitzgerald v. Boston Elevated Railway, 194 Mass. 242. Donovan v. Lynn Boston Railroad, 185 Mass. 533. Mathes v. Lowell, Lawrence & Haverhill Street Railway, 177 Mass. 416. Roberts v. New York, New Haven, & Hartford Railroad, 175 Mass. 296.
If we assume that no whistle was blown and that the noise of the car was not sufficient to attract attention, there is nothing except the plaintiff’s carelessness to account for his failure to see the car, if he looked, as he testified that he did, just before crossing the track. The approaching car could be seen for several hundred feet, and there was nothing to distract the plaintiff’s attention from his own safety. Even if the car
It follows, we think, that the plaintiff was not in the exercise of due care, and that the ruling requested by the defendant, that on all the evidence the plaintiff was not entitled to recover, should have been given. We have assumed in the plaintiff’s favor that there was evidence of negligence on the part of the motorman.
In view of the grounds on which we rest our decision it has not seemed to us that anything would be gained by reviewing at length the cases relied on by the plaintiff, though we have given them due consideration.
In the opinion of a majority of the court the entry must be,
Exceptions sustained.