Le Blanc v. Lowell, Lawrence, & Haverhill Street Railway Co.

Allen, J. The plaintiffs’ horses were on a walk, on the side of the road, when the defendant’s car came up from behind and struck the wagon, and thus caused the injuries complained of. It is not denied that there was evidence for the jury of negligence on the part of the defendant; but the defence rests on the grounds that the plaintiffs also were careless, and that they assumed the risk of accident. One of the plaintiffs testified that he saw the car coming, and thought .there was room enough for it to pass without striking the wagon. Another one of them testified that he did not see or hear the car till just as it was upon them. His testimony is not very clear, perhaps because of lack of familiarity with the English language. The testimony of the third plaintiff, who was driving, as to the circumstances of the accident, is not given. There was evidence tending to show that the car came at a high rate of speed, without sounding the gong. The plaintiffs were entitled to go to the jury upon the question [568] of their own due care; and the doctrine of a voluntary assumption of the risk is hardly applicable to the case. If they were in the exercise of due care, they were not consciously taking a risk of collision. The requests for instructions were therefore rightly refused. Exceptions overruled.