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.
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.