Williams v. Grealy

Chapman, C. J. The question is reserved whether the judge erred in refusing to instruct the jury that there was no evidence tending to show that the plaintiff was using due care at the time she received the injury, and is not entitled to recover. She was crossing Leverett Street, which was but twenty-eight feet wide, at the corner of Brighton Street, on her way to a bakery, and was within four feet of the curbstone when the defendant’s runaway horse, attached to a light wagon, ran against her with great speed and injured her. The judge instructed the jury that she was bound to exercise reasonable care, and sufficiently explained the meaning of the term reasonable. His instructions were not excepted to. The report does not state her situation, circumstances or conduct except that she was a witness, and testifie 1 that she 82 was injured while crossing the street, but did not know by what means; that she offered no direct evidence that she looked up or down the street before attempting to cross, or that she took any view of the street to see if there were any horses or vehicles in the street moving towards her. She remained unconscious for several hours after the injury. There was evidence that she said after the injury that she took no notice, and did not look to see if anything was coming towards her. This part of the evidence seems to be stated with a view to raise the question whether these negative facts are not conclusive proof of negligence, but we are left in ignorance of what was proved as to what other objects were in the street, or whether the horse could have been seen by her, or what was her manner of crossing the street, although it appears that other witnesses testified to having been in the street at the time, some seeing the plaintiff before, some at the time, and.some after she was struck by the horse, and each testified to what he saw of the plaintiff and the horse. But the mere fact of not looking when one attempts to cross a railroad is not conclusive evidence of want of care. Chaffee v. Boston & Lowell Railroad Co. 104 Mass. 108. Much less is it so in crossing a street; and in- the absence of all evidence of the circumstances, we can see no error in the refusal of the judge to rule as requested. The question whether, as matter of law, it was due care on the part of the defendant to leave the horse where he was left unfastened, under the circumstances, which are stated at great length in the report, was a question of fact which was properly submitted to the jury, and it would have been improper to rule that, as matter of law, the defendant used due care. Judgment on the verdict,