Albee v. Boston Elevated Railway Co. , 209 Mass. 6 ( 1911 )

Hammond, J.

While the plaintiff was crossing Boylston Street near Arlington Street in Boston at 8.30 o’clock P. M., in November, the rain falling heavily at the time and a very high wind blowing, she came into collision with the left hand corner of the fender of one of the defendant’s cars while it was in motion, and was injured. She testified that she looked and saw the car twice; once when she stepped from the curbstone which was about seventeen feet from the track, and once when she was about half way between the curb and the track; that the last time she looked the car was about one hundred and twenty-five feet away and coming slowly; that she thought she had time to get across and made the attempt. The evidence tended to show that she had got almost over the farther rail of the track when she was hit. She testified farther that the street at that place was substantially deserted, there being only this car and another car several hundred feet away from her approaching from the opposite direction.

Upon all the evidence we are of opinion that the questions, whether she looked as often as she ought to have looked and as late as she ought to have looked, and whether she was justified in thinking that she had time to get over the track ahead of the car, as well as the questions, whether the accident was due rather to the failure of the motorman to slow up when approaching the plaintiff than to any proper lack of judgment on her part, and whether the motorman was negligent, were for the jury. See Hunt v. Old Colony Street Railway, 206 Mass. 11; Hennessey v. Taylor, 189 Mass. 588; McCrohan v. Davison, 187 Mass. 466. The case is distinguishable from Holian v. Boston Elevated Railway, 194 Mass. 74, and other similar cases cited by the defendant.

Exceptions overruled.