Mahoney v. Metropolitan Railroad , 104 Mass. 73 ( 1870 )

Morton, J.

This case falls within the principle of the case of Thomas v. Western Union Telegraph Co. 100 Mass. 157. The fact that the plaintiff saw the obstruction created by the defendants, and knew its dangerous character, is not conclusive proof that he was negligent in attempting to pass it. A person who, in the lawful use of a highway, meets with an obstacle, may yet proceed if it is consistent with reasonable care so to do; and this is generally a question for the jury, depending upon the nature of the obstruction and all the circumstances surrounding the party.

In the case at bar, if the plaintiff had reasonable cause to believe that he could pass the obstruction in safety, and used reasonable care in the attempt, he is entitled to recover. Horton v. Ipswich, 12 Cush. 488. It is a question for the jury to determine whether, under the circumstances, the plaintiff was justified in attempting to cross the street notwithstanding the obstruction, and whether in doing so he used due care.

Exceptions sustained.