O'Shaughnessy v. Suffolk Brewing Co.

C. Allen, J. In view of the verdict, it must now be assumed, in favor of the plaintiff, that the injury to her occurred substantially in the manner which she described; namely, that while on [571] her way to school she sat down on the curbstone, ih order to sharpen her pencil, with one foot in the gutter, and that the defendant’s wagon came along and hit her while she was in that position. The instructions to the jury left them free to find a want of due care on her part, and were carefully guarded in all respects, unless it was the duty of the court to rule, as matter of law, that the plaintiff was not entitled to recover, because there was no evidence which would warrant the jury in finding that she was in the exercise of due care. It is to be observed, in the view which is now to be taken of the evidence, that there was no spirit of recklessness on her part, no intention to take a risk, no thought of encountering danger or hazard, and no calculation of chances ; there was simply a lack of sufficient precaution. Under these circumstances, the case differs from Messenger v. Dennie, 137 Mass. 197, and 141 Mass. 335; and we think it was properly left to the jury to determine, under all the circumstances of the case, whether the plaintiff was using such care as was reasonably to be expected of her. See Collins v. South Boston Railroad, 142 Mass. 301, 314; Mattey v. Whittier Machine Co. 140 Mass. 337; O’Connor v. Boston & Lowell Railroad, 135 Mass. 352, 361; Murley v. Roche, 130 Mass. 330 ; Lynch v. Smith, 104 Mass. 52; Mulligan v. Curtis, 100 Mass. 512; Bliss v. South Hadley, 145 Mass. 91. Exceptions overruled.