Negligence, In use of highway, Due care of plaintiff. A person, who stops on a crosswalk at the corner of two city streets to allow a team to pass him and during this momentary pause fails to look around and is struck and injured by a street car which comes around the corner from the intersecting street without sounding any gong or bell, is not necessarily negligent, and in an action against the corporation operating the street railway for his injuries thus caused, in which there is evidence of negligence on the part of the defendant, he may be entitled to have the question whether he was in the exercise of due care submitted to the jury.
SHELDON, J.
While these cases are very close, the majority of the court are of opinion that they should have been left to the jury. The plaintiffs were not necessarily negligent in starting to cross Harrison Avenue as they were passing along Beach Street. Their stopping on the crossing to allow a team to pass in front of them could be found to have been merely a proper act of precaution. Their failure to look around during this momentary pause was not decisive of negligence. Murphy v. Armstrong Transfer Co. 167 Mass. 199, and cases cited. The cases differ from Byrne v. Boston Elevated Railway, 198 Mass. 444, Callaghan v. Boston Elevated Railway, 200 Mass. 450, or Smith v. Boston Elevated Railway, 202 Mass. 489. See Hennessey v. Taylor, 189 Mass. 583; Hunt v. Old Colony Street Railway, 206 Mass. 11; Kerr v. Boston Elevated Railway, 188 Mass. 434; Silva v. Boston Elevated Railway, 183 Mass. 249; Howland v. Union Street Railway, 150 Mass. 86. The case last cited closely resembles those now before us.
It does not appear to have been disputed that there was evidence of negligence for which the defendant was responsible.
Exceptions sustained.