O'Callaghan v. Boston Elevated Railway Co.

249 Mass. 43

Opinion

Carroll, J.

This action is to recover for the death of the plaintiff’s intestate, who was killed, about nine o’clock in the morning February 27, 1921, by reason of being struck by an electric car operated by the defendant on Beacon Street, Somerville. A witness palled by the plaintiff, who “ saw about all there was of the occurrence,” testified he was standing on Beacon Street waiting for an inbound car and saw the plaintiff’s intestate “ coming out of Kent Street ” and continuing across Beacon Street; that when she stepped from the curb to cross Beacon Street the electric car was about two hundred feet distant; that when it struck the intestate it was moving on Beacon Street at the rate of twenty-five miles an hour, and went about two hundred feet after it struck her. The witness stated he was “ watching the girl [the plaintiff’s intestate] the instant she stepped down off the sidewalk ” and until she was struck, but did not see her look toward the approaching car and so far as he knew she “ was looking straight ahead.” There was evidence that no bell was sounded.

From the undisputed facts shown in this case, it appears that the plaintiff’s intestate walked across the street when the approaching car was in full view, without looking and without taking any precautions for her safety. The evidence of the plaintiff’s witness shows that the intestate was not in the exercise of due care. G. L. c. 231, § 85, does not help the plaintiff. The case is governed by Duggan v. Bay State Street Railway, 230 Mass. 370; Pigeon v. Massachusetts Northeastern Street Railway, 230 Mass. 392, Sullivan v. Chadwick, 236 Mass. 130, 137, Will v. Boston Elevated Railway, 247 Mass. 250.

Bagnell v. Boston Elevated Railway, 247 Mass. 235, Doyle v. Boston Elevated Railway, 248 Mass. 89, Conroy v. Maxwell, 248 Mass. 92, and Barnett v. Boston Elevated Railway, 244 Mass. 418, are distinguishable from the case at bar. The judge was right in directing a verdict for the defendant.

Exceptions overruled.