Itzkowitz v. Boston Elevated Railway Co.

Knowlton, C. J. There was very little if any evidence that the car was running otherwise than in the usual way, or that there was any negligence on the part of the defendant. But we will assume in favor of the plaintiff that he properly might have gone to the jury on this part of his case. The important question is whether there was evidence that the plaintiff was in the exercise of due care. Upon the undisputed testimony, he came out of a shop in the middle of the day and stepped directly in front of the car as he was starting to pass through the street towai’ds the north, while the car was coming to meet him moving towards the south. If he was in the exercise of care, he could not fail to see that he was close by the track of a street railway, and that a car might be expected to pass over it towards the south at any moment. The obstruction built over the sidewalk made it impossible for him to see up.the track until he reached the corner; but as soon as he was there, and before he reached the point of danger’, the track for a long distance was directly before him, open to his view. In his testimony and that of his witnesses, there is nothing, by way of justification or explanation of his act in stepping within the line of passage of the moving car when he could not fail to see it without shutting his eyes, and when it would seem as if he should have heard it. The only reasonable explanation of the accident is that the plaintiff hurriedly, and thoughtlessly and carelessly stepped in front of the car, without giving any attention to his safety, in a crowded street. In some of its aspects the case is like Hall v. West End Street Railway, 168 Mass. 461. See also Kelly v. Wakefield & Stoneham Street Railway, 175 Mass. 331; Hurley v. West End Street Railway, 180 Mass. 370; Creamer v. West End Street Railway, 156 Mass. 320; Mathes v. Lowell, Lawrence, & Haverhill Street Railway, 177 Mass. 416. We are of opinion that there was no evidence that the plaintiff was in the exercise of due care. Exceptions overruled.