JOHN A. BERG v. OLD COLONY STREET RAILWAY COMPANY.
Negligence, In use of highway.
A person in command of his senses, who, in crossing a city street, containing double tracks of a street railway over which he knows cars run "pretty often," does so at a point two or three hundred feet from the nearest crosswalk and in a diagonal direction with his back partially turned toward an approaching car, which, if he had looked, he could have seen for a long way, and neither looks nor listens for an approaching car and is run over, as a matter of law is not taking the precautions which the circumstances call for and is not in the exercise of due care.
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TORT for personal injuries from being run over by an electric street car of the defendant as stated in the opinion. Writ dated June 26, 1907.
In the Superior Court the case was tried before Hardy, J. Besides the facts stated in the opinion, there was evidence that the accident happened at five o'clock or a little later on the afternoon of Sunday, January 20, 1907, that it was dusk and that there were double tracks of the defendant upon the street. The plaintiff testified that he was sufficiently familiar with the locality to know that these tracks were level and straight for a long way in either direction; that the car which struck him was bound from Campello to Brockton; and that any one standing at the point from which he left the sidewalk could see a long way back toward Campello.
At the close of the plaintiff's evidence, the presiding judge ordered a verdict for the defendant; and the plaintiff alleged exceptions.
The case was submitted on briefs.
C. H. Johnson, for the plaintiff.
Asa P. French & J. S. Allen, Jr., for the defendant.
LORING, J. The plaintiff in the case at bar was run over by one of the defendant's cars while crossing Main Street in the city of Brockton, at a point some two or three hundred feet away from the nearest crosswalk. He testified that he knew of the defendant's tracks and that cars came over them "pretty often" and yet that he neither looked nor listened for an approaching car, and that he neither saw nor heard the one which ran over him. It also appeared from his testimony that he was walking across the street in a somewhat diagonal direction away from the point from which the car in question was coming. In addition there was affirmative evidence that he was not intoxicated.
The case comes within the second class of cases in Donovan v. Bernhard, ante, 181.
Exceptions overruled.