Negligence, In use of highway. Where a traveller, who is driving on a city street containing parallel tracks of a street railway, has occasion to cross both tracks, and, seeing two cars approaching, going in the same direction in which he has been travelling, stops his horse and waits until both of them have passed and until the second car has gone so far that he can see the farther track for a sufficient distance to enable him to cross that track without being struck by a car approaching from the opposite direction at a proper rate of speed, and then, after listening and hearing no gong, although the rules of the railway company require a gong to be sounded by one car passing another at that place, he proceeds until his horse has stepped between the rails of the farther track, when he sees a car coming from such opposite direction at a rate of speed which is dangerous at such a place without warning signals, and then tries to back off the track but his horse is struck by the fender of the car, and he is thrown out and injured, in an action brought by him against the railway company for his injuries there is evidence for the jury that he was in the exercise of due care.
The rule laid down in Lundergan v. New York Central Hudson River Railroad, 203 Mass. 460, that one, who approaching a grade crossing of a steam railroad when a train is due looks for the train at a point where he knows that his view is obstructed and fails to look for it later where he knows that if the train is coming he can see it plainly, has looked carelessly as matter of law, is not to be applied with the same strictness to travellers in a public street who have occasion to cross the tracks of street railways, such travellers having the right to expect that the street cars will be so driven as not to interfere unduly with the exercise by travellers of their right to cross the street.
SHELDON, J.
These two actions are brought, one for injuries to the person of the plaintiff in the first case (hereinafter called the plaintiff), and the other for injuries to the property of the plaintiff in the second cases, caused by a collision of one of the defendant's cars with a carriage driven by the plaintiff. The only question raised by the defendant's exceptions is whether there was any evidence of due care on the plaintiff's part. We do not think it necessary to recapitulate the evidence on this point. The defendant contends that the case comes under the rule laid down in Saltman v. Boston Elevated Railway, 187 Mass. 243. See also Bartlett v. Worcester Consolidated Street Railway, 189 Mass. 360. But while there is some resemblance, we are of opinion that this case differs from the Saltman case, and that it was properly submitted to the jury. The plaintiff according to his testimony did not start to cross the tracks until the second outbound car had got so far beyond him that he could see the track upon which was the car that ran into him, for what the jury might find to be a sufficient distance to warrant him in undertaking to cross. He had the right to rely somewhat upon the fact that he heard no gong from this car, which one of the defendant's rules required to be sounded while passing the other car. Stevens v. Boston Elevated Railway, 184 Mass. 476. He had the right to expect that the defendant's car would not be driven at so dangerously high a rate of speed without the usual and required warning signals as to involve danger of a collision; and this is to be taken into account in judging his conduct.
He looked and listened for an approaching car. Orth v. Boston Elevated Railway, 188 Mass. 427, 429. The principle of Lundergan v. New York Central Hudson River Railroad, 203 Mass. 460, is not to be applied with the same strictness to travellers in a public street who have occasion to cross the tracks of street railways and who have the right to expect that the street cars will be so driven as not unduly to interfere with the exercise of this public right. Burns v. Worcester Consolidated Street Railway, 193 Mass. 63. Kelly v. Wakefield Stoneham Street Railway, 179 Mass. 542. Hennessey v. Taylor, 189 Mass. 583, 586. Peabody v. Haverhill, Georgetown Danvers Street Railway, 200 Mass. 277.
The question of the plaintiff's due care was rightly submitted to the jury.
Exceptions overruled.