Magner v. Boston Elevated Railway Co.

Sheldon, J. While these cases are very close, the majority of the court are of opinion that they should have been left to the jury. The plaintiffs were not necessarily negligent in starting to cross Harrison Avenue as they were passing along Beach [62] Street. Their stopping on the crossing to allow a team to pass in front of them could be found to have been merely a proper act of precaution. Their failure to look around during this momentary pause was not decisive of negligence. Murphy v. Armstrong Transfer Co. 167 Mass. 199, and cases cited. The cases differ from Byrne v. Boston Elevated Railway, 198 Mass. 444, Callaghan v. Boston Elevated Railway, 200 Mass. 450, or Smith v. Boston Elevated Railway, 202 Mass. 489. See Hennessey v. Taylor, 189 Mass. 583; Hunt v. Old Colony Street Railway, 206 Mass. 11; Kerr v. Boston Elevated Railway, 188 Mass. 434; Silva v. Boston Elevated Railway, 183 Mass. 249; Howland v. Union Street Railway, 150 Mass. 86. The case last cited closely resembles those now before us. It does not appear to have been disputed that there was evidence of negligence for which the defendant was responsible. Exceptions sustained.