Mathes v. Lowell, L. & H. St. Ry.

• Decision Date: 04 January 1901
• Citation: 59 N.E. 77,177 Mass. 416
• Parties: MATHES v. LOWELL, L. & H. ST. RY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

177 Mass. 416

59 N.E. 77

MATHES v. LOWELL, L. & H. ST. RY.

Supreme Judicial Court of Massachusetts, Essex.

January 4, 1901

COUNSEL

W. S. Peters and H. J. Cole, for plaintiff.

J. P Sweeney and H. R. Dow, for defendant.

OPINION

BARKER J.

The verdict for the defendant was ordered rightly, because there was no evidence from which it could be found that the plaintiff's intestate was in the exercise of ordinary care. A foot traveler whose course is across the tracks of a street railway must exercise care to avoid being hurt by the cars, and, if he is struck by a car and injured or killed, there can be no recovery, in a suit against the railway company for damages, unless the plaintiff shows by affirmative evidence that the traveler was in the exercise of due diligence to avoid injury. And, further, when the whole evidence has no tendency to show care on the part of the traveler, but, on the contrary, shows that he was careless it is the duty of the court to direct a verdict for the defendant. Creamer v. Railway Co., 156 Mass. 320, 31 N.E. 391, and cases cited. See, also, Benjamin v. Railway Co., 160 Mass. 3, 35 N.E. 95; Robbins v. Railway Co., 165 Mass. 37, 42 N.E. 334; Kelley v. Railway Co., 175 Mass. 333, 56 N.E. 285. The evidence tended to show that the plaintiff's intestate, a woman, was struck by the car as she was attempting to cross the street, in the center of which was the car track. The width of the street between the sidewalks was 40 feet, and that of the track 4 feet 8 1/2 inches. In attempting to cross the street the deceased was walking from the northerly curbstone towards the south; the street running east and west, and the car going from east to west. From the northerly curb to the northerly rail of the track the distance was 17 1/2 feet. The accident happened in the forenoon of a clear, bright winter morning. A few days before there had been a heavy fall of snow, and the surface of the street was covered with snow. It had been removed partially from the part of the street northerly of the car track, but was still very deep, and lay in piles close to the track upon its southerly side; and on each side of the track the surface of the snow was above the rails, and slanting away from each rail. Another street joined the one in which was the car track at right angles, from the north; and a crosswalk of flagstones led from the sidewalk at the easterly corner made by the joining of these two streets across the street in which was the track. Five of the witnesses called testified that they saw the accident. Of these witnesses, two did not see the deceased until she was in collision with the car, or nearly so, but...