Hall v. West End Street Railway Co.

Knowlton, J. There is no absolute rule of law that, to be in the exercise of due care, one about to cross a public street must look and listen for approaching vehicles. Robbins v. Springfield Street Railway, 165 Mass. 30. He must do for his safety what ordinarily careful persons are accustomed to do under like circumstances. Soon after twelve o’clock in the daytime, the plaintiff was about to cross Canal Street in Boston, at a place where cars and other vehicles are almost constantly passing. He had good eyesight, but was very deaf. The evidence tended to show that the street was free from vehicles for a considerable distance in the direction from which the car was approaching, and the plaintiff testified that, if he had looked in that direction, he could have seen a distance of three or four hundred feet. He also testified that he saw nothing approaching, and did not know when he was struck. None of his witnesses testified that the car which struck him was going faster than three or four miles an hour; and it appears to have been stopped when the forward end of it had got only ten or fifteen feet beyond the cross walk. We are of opinion that all the evidence fails to show that the plaintiff was in the exercise of due care. His want of hearing made it incumbent upon him to be more alert in the use of his other senses. For him to cross in such a place, where he could not fail to know that passing vehicles were constantly to be.expected, in such a state of inattention that he knew nothing qf the approach of the car until after he was struck, shows a want of ordinary care. [463] It is not necessary to decide that there was or was not evidence of negligence on the part of the defendant. If there was any, it was very slight. The motorman, while going at the rate of three or four miles an hour, had no reason to expect that a man crossing on the walk would step immediately before the car where it would run over him. As he saw the plaintiff approaching he would naturally expect that he would either hurry across before the car, or stop before stepping on the track, and let the car pass by. Exceptions overruled,