Howland v. Union Street Railway Co.

22 N.E. 434, 150 Mass. 86, 1889 Mass. LEXIS 23

Opinion

C. Allen, J.

We think the plaintiffs were entitled to have their cases submitted to the jury. The boy was in the street for a legitimate and proper purpose. The evidence would have warranted the jury in finding that he had walked upon the street railway track for not more than eighty or ninety feet, by the side of a noisy ice-cart, which might prevent him from hearing a street car approaching from behind; that if at the time of being run over he was standing still, as he himself testified, this had been but for a moment, while, if the driver of the ice-cart was correct, the boy was yet walking along; that the driver of the street car was careless; that the boy might properly rely somewhat on the driver’s using greater care than he did use; and that there was no reason to expect a car along at that particular time, the car being five or ten minutes late, and another not yet due. With evidence tending to show this state of things, it was for the jury to say whether on the whole the boy exercised' such care as he was bound to exercise.

Exceptions overruled.