Shapleigh v. Wyman

Devens, J. We have heretofore held that the decisions as to the degree of care required at a railroad crossing do not afford a proper test of the care which is demanded of one, who, in passing from one side to the other of a public street or way, must necessarily have suitable regard to the vehicles lawfully travelling thereon. The same degree of watchfulness is not required as when a railway train, which is usually run at a higher rate of speed, and is confined to a track from which it cannot deviate, and cannot be checked suddenly, except with difficulty and hazard, has a right to use a particular portion of the highway. Lynam v. Union Railway, 114 Mass. 83. Bowser v. Wellington, 126 Mass. 391. The mere fact that the plaintiff did not look up or down Essex Street, but straight ahead, when she stepped upon the flagging stones to cross, is not conclusive of a want of due care on her part, which contributed or may have contributed to the [120] accident. Williams v. Grealy, 112 Mass. 79. Schienfeldt v. Norris, 115 Mass. 17. Had she done so, it does not appear that she could have seen the vehicle by which she was injured, nor indeed that it was in Essex Street at the time. The fact that her companion, a woman of seventy-eight years of age, (she herself being sixty-seven,) had already reached the opposite side of the street when the injury occurred, tended to show that she had not rashly undertaken to cross. Nor was the circumstance that, at the time the plaintiff was struck, she was not lockings “ up or down Essex Street, but followed the flagging, looking straight ahead,” conclusive against her. In the most carefully kept streets, the slipperiness produced by the damp mud brought by their use upon the flagstones may often be such as to require for the time being the whole attention of the traveller, especially if she be a person somewhat advanced in years. The question of due care on the part of the plaintiff was therefore properly submitted to the jury. Exceptions overruled.