Mullen v. Boston Elevated Railway Co.

Braley, J.

The evidence is irreconcilable. But the jury could have found from the plaintiff’s testimony, that she was walking on the crosswalk over the plaintiff’s track, after having looked when at the curbstone and seen the car some distance away on the inward track, which appeared to be “slowing down,” and a heavy team approaching at a walk from the opposite direction on the outward track. It was not, as matter of law, negligence for her to attempt to cross from one side of the street to the other. Wood v. Boston Elevated Railway, 188 Mass. 161 . Silva v. Boston Elevated Railway, 183 Mass. 249 . Coleman v. Lowell, Lawrence & Haverhill Street Railway, 181 Mass. 591 . Creavin v. Newton Street Railway, 176 Mass. 529 . Driscoll v. West End Street Railway, 159 Mass. 142 . And the plaintiff had the right to assume that the motorman and the driver of the team would use reasonable care to avoid running her down. Jeddrey v. Boston & Northern Street Railway, 198 Mass. 232, 234 . Hennessey v. Taylor, 189 Mass. 583, 586 . Finnick v. Boston Northern Street Railway, 190 Mass. 382, 386 . Murphy v. Armstrong Transfer Co. 167 Mass. 199, 201 . It further could have been found that the plaintiff would have passed ahead of the wagon, and over in safety, if the driver had not suddenly whipped up his horses just as she reached the inward track, and placed her.in a dangerous position where she hesi *81 tated whether to go forward, or to turn back, and while in doubt she was struck by the car. The occurrence was not extraordinary, but merely an incident likely to arise in the concurrent use of our streets by different classes of travellers, where street cars also are operated. The plaintiff was twelve years of age, and it was for the jury to determine whether, when thus beset, she acted with reasonable prudence. O’Brien v. Lexington & Boston Street Railway, 205 Mass. 182, 184 . The question of the defendant’s negligence was also for the jury. The view of the motorman was unobstructed, and the car was being operated not with an exclusive right of way, but subject to the exigencies of public travel. Eustis v. Boston Elevated Railway, 206 Mass. 143, 144 , and cases cited.

Exceptions overruled.