Peter Lahti vs. Fitchburg and Leominster Street Railway Company.
Worcester.
October 4, 1898. —
October 21, 1898.
Present: Field, C. J., Knowlton, Morton, Barker, & Hammond, JJ.
Personal Injuries — Due Care.
At the trial of an action for personal injuries occasioned to the plaintiff by the collision of the wagon in which he was riding with an electric car of the defendant at the point of intersection of M. and P. Streets, the former of which ran east and west and the latter nortli and south, it appeared that the car was going slowly ; that the plaintiff was nearly across the track at the time of the collision; that there was a high board fence on the southerly side of M. Street at its junction with P. Street, which was an obstruction to the plaintiff’s westerly view of M. Street until he reached a point fifteen feet southerly of the south rail of the railway track in that street; that he looked up M. Street and saw nothing; that he heard no gong or bell; that he was going “a little faster than a walk,” and “ slowed up a little before he got on to the track ” ; and that “ when he got on to the track he hurried up his horse.” Held, that there was evidence for the jury that the plaintiff was in the exercise of due care.
Tort, for personal injuries occasioned to the plaintiff by a collision between a baker’s cart driven by him and an electric car of the defendant. At the trial in the Superior Court, before Hopkins, J., there was evidence tending to show that the collision occurred on April 27,1897, at about 5.45 o’clock p. M., in Fitchburg, at the point of intersection of Main Street with Putnam Street; that Main Street runs east and west; that Putnam Street runs north and south; that the two meet at right angles; that the track of the defendant was laid in the centre of Main Street; that at the time of the collision the plaintiff was driving from Putnam Street northerly across Main Street, and the electric ear of the defendant was proceeding easterly on Main Street; that a new building was in process of erection on the southerly side of Main Street and westerly side of Putnam Street, and that there was a high board fence on the southerly side of Main Street; that the distance from the track to the curbing was 15.7 feet, and this fence was erected in the street at a distance, according to the testimony of various witnesses, of from 10 feet to 18-|- feet from the track; that to any one approaching Main Street from Putnam street this fence was *148an obstruction to the westerly view of Main Street, but that at a point 15 feet southerly from the south rail of the railway track in the line of travel from Putnam Street to Main Street there was a view westerly upon the street railway track for a distance of 349 feet; and that this view of the track increased in distance as the track was approached, and that view of the track decreased rapidly as the point of observation was removed beyond a distance of 15 feet.
The plaintiff testified .that he was driving a four-wheeled baker’s cart, which was covered on all four sides and on the top with wood or canvas, except the glass windows hereinafter mentioned ; that it had a door on each side opening between the front and rear wheels, and a seat inside extending across the cart; that he was sitting on the seat and driving with a rein in each hand; that the doors were closed; that in front of him was a counter three feet high, and above the counter at the front end of the cart and four feet from his seat was a glass window; that as he sat on the seat the top of the cart was two feet above the top of his head; that the side doors extended to the top of the cart and were of wood, with a glass window nine to sixteen inches wide at the top; that the reins ran through holes at the top of the glass window in front; that when he came into Main Street he looked up the street and saw nothing; that he could see but a very little distance because the fence referred to was in his way; that after he looked up the street, he looked easterly down Main Street, and then looked round ; that he first looked through the front and then through the glass_ inside doors, and saw nothing; that he was driving across Main Street when the car struck the wagon ; that he did not hear any gong or bell; that he was going a little faster than a walk ; that he slowed up a little before he got on to the track ; that when he got on- to the track he hurried up his horse; and that he had driven over these streets many times, and at this time was driving in the centre of Putnam Street.
Other witnesses testified that the car approached the point of collision at a very slow rate of speed, and all the evidence was un con tro verted that the car stopped within one or two feet from the point of collision. There was evidence, and the plaintiffs counsel contended, that by reason of the slow rate of speed at *149which the car was running the motorman had full control of the car, and ought to have stopped it before the collision.
One Hurley, who was a passenger on the car, testified that he first saw the cart at the moment of collision, and that his attention was attracted to it at that moment either by the bell or by the fact that the brakes were applied.
At the conclusion of the evidence the defendant asked the judge to rule that there was not sufficient evidence that the plaintiff was in the exercise of due care to warrant a verdict for the plaintiff. The judge refused so to rule, and the defendant excepted.
The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.
C. F. Baker, for the defendant.
J. F. McConnell, for the plaintiff.
Field, C. J.
The single question in this case is whether there was evidence for the jury that the plaintiff was in the exercise of due care. We think that there was. There was evidence that the car was going at a slow rate, that the plaintiff was nearly across the track at the time of the collision, that there was a high board fence on the southerly side of Main Street at its junction with Putnam Street which was an obstruction to the plaintiff’s westerly view of Main Street until he reached a point fifteen feet southerly of the south rail of the railway track in that street, that the plaintiff looked .up Main Street and saw nothing, that he heard no gong or bell, that he was going “ a little faster than a walk,” and “ slowed up a little before he got on to the track,” and that “ when he got on to the track he hurried up his horse.” We think this was evidence of the plaintiff’s due care, to be submitted to the jury. Driscoll v. West End Street Railway, 159 Mass. 142. Robbins v. Springfield Street Railway, 165 Mass. 30. White v. Worcester Consolidated Street Railway, 167 Mass. 43.
Exceptions overruled.