Mattey v. Whittier Machine Co.

Morton, C. J. We cannot say, as matter of law, that the plaintiff, by stopping to pick up her bundle, was guilty of contributory negligence which prevents her recovering in this action. In some cases, when all the circumstances attending the act and the situation of a plaintiff are settled and undisputed, and these circumstances show, according to the common experience of all men, that the plaintiff was careless, the court has held, as matter of law, that he could not recover. But such is not this case. There was conflicting evidence at the trial as to the speed with which the defendant’s servant was driving, and as to the distance of his horse and wagon at the time the plaintiff stopped to pick up her bundle. It was the province of the jury to determine these facts, and the law leaves to their judgment and experience the inference whether or not, upon the circumstances which they found to exist, the plaintiff was using such care as is reasonably to be expected of one of her years. The case was properly submitted to the jury. Exceptions overruled.