Murphy v. Armstrong Transfer Co. , 167 Mass. 199 ( 1896 )

Knowlton, J.

In this ease the evidence of negligence on the part of the defendant’s driver is inconsiderable, and the evidence of due care on the part of the plaintiff is still less. From the printed report of the evidence in the bill of exceptions, it seems probable that the negligence of the plaintiff contributed more largely to the accident than negligence of the defendant’s servant; but we cannot say, as matter of law, that there was no evidence that the driver was negligent. He testified that he did not see the plaintiff until the collision occurred. He was driving a hack drawn by two1 horses, at a slow trot, at a little after six o’clock in the evening of October 4, 1893, southward along Hudson Street in Boston, across Harvard Street. He testified that the lanterns on his hack were lighted, and there was evidence tending to show that there were lights in grocery stores on both corners of Hudson and Harvard Streets on the northerly side of Harvard street. The plaintiff was crossing Hudson Street on the cross walk on the southerly side of Harvard Street. The evidence tended to show that there was no other team in the vicinity, and the jury might have found that he was negligent in not looking before him before he crossed Harvard Street so carefully as to discover the plaintiff before his horses struck her.

The plaintiff testified that she was going westward along the southerly side of Harvard Street in the usual way, looking before her, and that when she got a little more than half way across Hudson Street she was struck and thrown down on the crossing, and when she recovered her consciousness she was under the feet of the horse on the right hand side, — that is, on the westerly side of the pole. There was evidence tending to show that she was mistaken in regard to the place where she found herself in her account of the collision ; but whether she was or was not was a question of fact for the jury. If they believed her testimony,it indicated that she had passed beyond the centre of the line of travel of the team before the collision, and that the horse at the right of the driver ran against her. It has repeatedly been held that the mere failure of a pedestrian to look and listen for approaching teams, as he passes over a crosswalk at the junction of two streets, is not necessarily such negligence as will prevent recovery if he is run over by a passing team. Shapleigh v. Wyman, 134 Mass. 118. Purtell v. Jordan, 156 Mass. 573, 577. Benjamin v. Holyoke Street Railway, 160 Mass. 3.

If it appears that a plaintiff was walking along in the usual way where persons are accustomed to walk, it is ordinarily a question of fact for the jury whether, in so walking at the time of the accident, he was in the exercise of due care. Purtell v. Jordan, ubi supra. Williams v. Grealy, 112 Mass. 79. Bowser v. Wellington, 126 Mass. 391. Rand v. Syms, 162 Mass. 163. Robbins v. Springfield Street Railway, 165 Mass. 30.

We are of opinion that in the present case there was evidence proper for the consideration of the jury in support of the proposition that the plaintiff was in the exercise of due care.

Exceptions overruled.