Meysht v. Boston Elevated Railway Co.

96 N.E. 666, 210 Mass. 341, 1911 Mass. LEXIS 1068

• Court: Massachusetts Supreme Judicial Court
• Decided: November 29, 1911
• Status: Published

Opinion

Sheldon, J.

The jury might have found that the accident in which the plaintiff was injured was due to negligence in running the defendant’s car. This is not denied. The only contention made by the defendant’s counsel is that on the evidence the jury would not have been warranted in finding that the plaintiff was in the exercise of due care.

We cannot agree with this contention. The plaintiff looked along the defendant’s tracks before attempting to cross the street, and saw that the car was at an°apparently safe distance from him. He was correct in his judgment and would have crossed without harm had not a team turned in from a cross street and passed in front of him. He was not bound as matter of law, whatever the jury might have found as matter of fact, to look into the cross street and wait until there was no possibility of such an event as happened. When he found himself thus pocketed between the defendant’s farther track and the unexpected obstacle, it may have been wiser and less dangerous for him to stop where he was (as in Magner v. Boston Elevated Railway, 209 Mass. 60) than to return over the defendant’s other track and the rest of the street to his starting point. At any rate this was for the jury to say. The cases relied on by the defendant do not support its contention.

Exceptions sustained.