Purtell v. Jordan , 156 Mass. 573 ( 1892 )

Knowlton, J.

There was evidence from which the jury might have found that the injury to the plaintiff was caused by the negligence of the defendants’ servant in driving too fast, when, by reason of the gathering darkness and the close proximity of the high loaded team, he was unable to see whether any one was on the crossing about to pass immediately before him. The jury might also have found that the plaintiff was using such care as persons of ordinary prudence are accustamed to exercise under like circumstances. The court rightly refused to order a verdict for the defendants.

The defendants requested the presiding justice to instruct the jury as follows: “ That if the plaintiff, standing where he was on Harrison Avenue, could not, before he attempted to cross the street, by reason of the position and movement of the large team, see vehicles coming down Harrison Avenue and approaching Oak Street, he was not in the exercise of due care in attempting to cross the street until such obstacle to his view was removed. If, when the plaintiff started to cross Harrison Avenue, he could not see defendants’ team approaching by reason of the position of the large team, and attempted to cross so closely to the rear of the large team that he could not see defendants’ team approaching until be got by the large team, he was not in the exercise of due care.” It is urged, in behalf of the defendants, that it is always negligent for a pedestrian in the streets of Boston to attempt to cross behind a high loaded team until the team has passed so far as to enable him to see that no other team is coming from behind it on the other side. We cannot lay this down as a legal proposition. Bowser v. Wellington, 126 Mass. 391. Skapleigh v. Wyman, 134 Mass. 118. The circumstances of different cases so vary, and the natural and usual methods of crossing our crowded streets are so affected by facts and influences which are difficult of statement, and which are seldom found twice in the same combination, that there are few rules of law which can be arbitrarily laid down in reference to the effect of particular acts. When a pedestrian is run over by a team on a street, the question whether there was negligence on his part, or on the part of the driver of the team, or on the part of both of them, is usually a question of fact, to be decided by the jury. One passing behind a loaded team which obstructs his view has no such reason to apprehend danger from a team driven in the opposite direction, when he hears nothing, as he would have if he were crossing over one track of a railroad to another on which a rapidly moving train might be coming. Of course he should take precautions, and endeavor to ascertain whether he is exposing himself to danger. But in view of the rate of speed at which horses are ordinarily driven in crowded streets, and the control which is usually exercised over them, to determine what precautions are necessary to prevent being run over is commonly a matter of fact, and not of law.

We are of opinion that the instructions requested were rightly refused. Exceptions overruled.