THEODORE C. ERB vs. BOSTON ELEVATED RAILWAY COMPANY. THERESA C. ERB vs. SAME.
Negligence. Street Railway.
In an action against a street railway company for personal injuries, if there is evidence that the plaintiff and another person were driving in a buggy on a bright morning and, being about to cross the tracks of the defendant in a city street, stopped and looked both ways for cars and listened, that they saw and heard nothing, that they then proceeded to cross the street in a diagonal direction and almost immediately were struck by a car, and there is conflicting evidence as to the speed of the car and on the question whether a gong was sounded, the case is one for the jury.
LATHROP, J. These are two actions of tort for injuries sustained by the plaintiffs while driving in a buggy, in consequence of their vehicle being struck by an electric car of the defendant, on Washington Street in Boston. At the trial in the Superior Court, a verdict was returned for the plaintiffs, and the cases are before us on the defendant's exception to the refusal of the judge to direct a verdict for the defendant.
The plaintiffs drove through Madison Street from Shawmut Avenue to Washington Street. They then stopped and looked both ways for cars, and listened. They saw nothing and heard nothing. They then proceeded to cross Washington Street in a
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diagonal direction towards Hunneman Street, and were almost immediately struck by a car. The time of the accident was about half past eleven of a bright morning, on the 8th of March, 1904. There was conflicting evidence on the question whether the gong was sounded and as to the speed of the car.
If the jury believed the testimony of the plaintiffs there was evidence that they were in the exercise of due care; and it clearly was a question for the jury on the conflicting evidence whether there was negligence on the part of the defendant. Wood v. Boston Elevated Railway, 188 Mass. 161.
Exceptions overruled.
J. E. Hannigan, for the defendant.
T. J. Barry, for the plaintiffs.