Silva v. Boston Elevated Railway Co.

Hammond, J. The evidence is somewhat conflicting as to several material facts involved in this case, especially as to the speed of the car and its distance from the watering cart at the time the latter turned to cross the track upon which the accident occurred, and a verdict for the defendant might reasonably have been expected; but, nevertheless, upon the evidence we think that the questions of the due care of the plaintiff and the negligence of the defendant were questions of fact for the jury. The second instruction requested was properly refused. It requested that the effect of one of many facts bearing upon the negligence of the defendant should be separately stated to the jury. This the presiding judge was not bound to do. Moreover, it was not correct. The car might have been proceeding at a speed so rapid that, even if the brake was in good condition the car could not have been stopped in time to prevent a collision, and yet such speed may have been negligence. If it was the purpose of the counsel for the defendant to have the jury instructed that, even if the defendant was negligent as to the brake, the jury should not consider that fact unless that condition of the brake contributed to the injury, it is to be said that the instruction requested did not raise such a question. We see no error in the manner in which the case was sent to the jury. Exceptions overruled.