Casey v. City of Fitchburg , 162 Mass. 321 ( 1894 )

Allen, J.

Without holding the plaintiff too strictly to her admission made in cross-examination, that she thoroughly understood the risk she was running, the circumstances of the case show the same thing. The distance from the house to the street was only about fifteen feet. The digging of the trench was begun about a week before the accident, and was continued from day to day. The main entrance to the house was obstructed by stones, so that the occupants had given up the use of the front door entirely. A ladder had been placed just south of where the trench entered the street, and persons going to and from the house were obliged to and did pass up and down this ladder, and over the piles of earth along the south side of the trench, using the kitchen door, which faced the street and was at the south end of the house. The plaintiff was well acquainted with the condition of things. She had gone out and in by this course once before on the evening of the accident. When she came in she noticed that it was very dark in the yard, and said that there ought to be a light there. Later in the evening, wishing to see her visitors safely to the sidewalk, they having said that they were afraid of the way, she went with them from the house without taking any light, and undertook to follow them to the street. She said in her testimony, “ I poked my way as best I could.” When asked why she did not take a light, she answered that she did not think of it. She was asked if a light could have been of any use that night, and answered, “ I suppose if I had brought a light I would have been all right.” It is apparent that she was not in the exercise of due care. In other cases, somewhat resembling this in their facts, the evidence has been held proper to submit to the jury. In this case, on the plaintiff’s own testimony, it seems to us that the ruling withdrawing the case from the jury was right. Exceptions overruled.