Haynes v. Boston Elevated Railway Co.

Rdgg, J. These are two actions of tort, in one of which damages are sought for the conscious suffering of George G. Haynes, and in the other for his death under R. L. c. Ill, § 267. In both actions the plaintiff is bound to show that the intestate was in the exercise of due care. The accident occurred between half past four and five o’clock in the afternoon of May 18, 1905, on Beacon Street in Somerville, on the surface of which were two tracks for trolley cars. The weather was fair. The plaintiff’s intestate had been a passenger upon an outbound car from which he alighted while it was in slow motion, and it proceeded on its course without having come to a stop.- He was perfectly familiar with the street and lived near by. He turned and crossed the track, over which he had come, behind the car, and when about in the middle of that track turned his head toward the direction whence the car came which struck him, and continued walking diagonally across, and when on the other track was struck by a car going in the opposite direction from the one he had left, and received mortal injuries. There was nothing to obstruct his view or distract his attention. The street was nearly level and straight for a distance of at least one hundred and eighty feet, according to all the witnesses, and within this distance was the car which struck him at the time he left the car upon which he had been a passenger. The evidence was not definite as to just where the car was immediately before he stepped into danger, but its rate of speed was described by one witness as fifteen miles an hour, and as the intestate was struck while he was between the rails, it must have been close upon him. There is no reason why, if he had looked in that direction, he should not have seen the on-coming car. It was in plain sight. It was moving rapidly. He either saw the car and took his chances of getting past the place of danger or looked so carelessly as to fail to see what was before his eyes. In either event, he was not in the exercise of due care. The case is governed by several recent decisions, and involves no principle of law not discussed in them. Madden v. Boston Elevated Railway, 194 Mass. 491. Casey v. Boston Elevated Railway, 197 Mass. 440. Stackpole v, Boston Elevated Railway, 193 Mass. 562. Beirne v. Lawrence & Methuen Street Railway, [251] 197 Mass. 173. Fitzgerald v. Boston Elevated Railway, 194 Mass. 242. Callaghan v. Boston Elevated Railway, 200 Mass. 450. Cohen v. Boston Elevated Railway, 202 Mass. 66. Exceptions overruled.