O'Leary v. Haverhill & Plaistow Street Railway Co.

Sheldon, J. Although the question was a close one, we are of opinion that the case rightly was submitted to the jury. 1. There was evidence that the plaintiff was in the exercise of due care. He testified that when struck by the car he was working at a distance of two feet from the tracks, which ordinarily would be a safe place; that he had looked two or three seconds before for a car coming and saw none, although the track was visible for twelve hundred feet; that he was listening for the noise of an approaching car but heard none; and that no bell or gong was sounded. Other witnesses testified that he was apparently in a safe place when struck, and that they heard no car coming. Doubtless the jury well might have found that he changed his position by stepping nearer to the car just before he was hit, and that he would have seen or heard the car coming if he had either looked or listened; but we cannot pass upon the weight of the evidence. The cases in which the conduct of a plaintiff attempting to pass over a grade crossing of a steam railroad was considered are not applicable here; and the circumstances that were decisive in Saltman v. Boston Elevated Rail [341] way, 187 Mass. 243, Donovan v. Lynn & Boston Railroad, 185 Mass. 533, and Quinn v. Boston Elevated Railway, 188 Mass. 473, do not exist in this case. 2. The defendant did not contend at the argument that the question of the negligence of its servants was not properly left to the jury. Exceptions overruled.