Blackwell v. Old Colony Street Railway Co.

Hammond, J. The accident happened in broad daylight, upon a wide, straight street. Aside from the line of stationary cars on the north bound track and the moving car upon the south bound track, there were no teams or other vehicles upon the street to impede the progress of the plaintiff’s testator or to affect his movements. He was of middle age, was familiar with the locality, and must be presumed to have known that there were double tracks and that cars frequently passed over them. Under such conditions he undertook to cross the street. Having passed from the sidewalk to the north bound track, he passed over that track between two of the cars there standing still, then proceeded over the space between the two tracks and got to the middle of the south bound track, when for the first time he saw the south bound car then close upon him. During all this time, from the time he left the sidewalk until he was struck, it is not shown that he had either looked or listened for a car upon the south bound track. It is true that there is evidence that before crossing the north bound track he “ hesitated ”; and it is argued by the counsel for the plaintiff that the jury might have found that he was then looking or listening. But the cause of his hesitation is the merest conjecture, and moreover it is plain that [225] looking could do no good afc that time because of the obstruction to his vision. It is perfectly plain from his own statement and from the evidence of the witness Read, who crossed immediately before him, that at the time the testator was about to step upon the south bound track he must have known of the near presence of the moving car had he taken any precaution whatever to ascertain. It is argued however by the plaintiff that the ringing of the bell of the car standing still upon his left as the testator crossed the north bound track was a negligent act of the defendant, or that at any rate it indicated to the testator that he was in a place of peril and must hastily seek a place of safety; and, therefore, that his failure to make any effort to look or listen for a moving car upon the south bound track was excusable. But this position is untenable. Under the circumstances the act of ringing the bell cannot be regarded as a negligent act. Nor was the peril of the starting of the car in a line of cars still standing so great as to justify the testator in getting upon the track where there might be a moving car without taking reasonable care to see the danger which might be lurking there. The ruling that there was no evidence of his due care to be submitted to the jury was correct. See Saltman v. Boston Elevated Railway, 187 Mass. 243, and cases there cited. Exceptions overruled.