DiIorio v. Jordan Marsh Co.

Rugg, C. J. There was evidence tending to show that the female plaintiff (hereafter referred to as the plaintiff) was pulling upon a wooden box about a yard and a half long, three feet wide and four feet high on the sidewalk of Salem Street in Boston, at eight o’clock in the evening. The box was partially on the sidewalk, and projected somewhat over the curb into the street. It was so heavy that two persons were moving it from one store to the next store. The plaintiff was pulling backward with one foot in the street and the other on the sidewalk, while her helper was pushing on the other end of the box. When it had been moved about a yard, the defendant’s wagon being driven on its right side of the street, which at this poinjfc was congested with traffic and about twenty feet wide, injured the plaintiff. The wagon came upon her from behind, and she had not looked around once while helping to move the box. There was testimony strongly contradicting this version of the way the accident happened, but it cannot be ruled as matter of law that the jury may not have found these to be th¿ facts. The single question presented is whether the plaintiff legally could have been found by the jury to have been in the exercise of due care. The plaintiff was a traveller upon a public way. It was lawful for her to move the box from one store to another on the same side of the street. There was a narrow sidewalk on a narrow street, and both were crowded. It cannot be said that there was any lack of care in selecting the curb of the sidewalk as the portion of the way in which to move the box. The circumstances in which the plaintiff was placed were somewhat unusual. She was pulling at a box which by its size and shape afforded a considerable protection. It projected into the street probably farther than her body. It was so large that it would not escape the observation of any careful driver on the street. It was being moved slowly, and by protruding into the street might cause her to think that others would avoid collision with it, and that by reason of her nearness to it and partial shelter by it she might relax her outlook for danger. Although one must use proper [282] care while upon a public way, he may rely in part upon the presumption that other travellers will use a reasonable degree of care. Moreover, the plaintiff was being aided by a man at the other end of the box, who was facing in the direction from which any team would come, and on whom, without express stipulation to that effect, on account of his opportunity for constant knowledge of her position, she might in some slight degree rely to warn her of approaching harm. Her purpose was to move the box only a very short distance. Ordinarily, one walking backward on such a street would be lacking in due care. But the present facts are in a measure exceptional, and, though close to the line, the plaintiff’s conduct cannot in our opinion be pronounced negligent, as matter of law. Donovan v. Bernhard, 208 Mass. 181. The case at bar is distinguishable from Flansberg v. Heywood Brothers & Wakefield Co. 190 Mass. 125; S. C. 199 Mass. 410, and Russo v. Charles S. Brown Co. 198 Mass. 473. Exceptions overruled.