Negligence. Street Railway. Practice, Civil, Exceptions. If a boy eleven years of age on his way to school has occasion to cross a city street with parallel tracks on which he knows that electric cars run in both directions, and, seeing a car on the track nearer to him, waits for it to pass and then runs at a trot across the track behind this car, when he is struck and injured by a car coming from the opposite direction on the track beyond, which was concealed from his view by the first car, he is not in the exercise of due care, and cannot recover for his injuries from the corporation operating the car which struck him even if such operation was negligent.
In an action against a street railway company for personal injuries alleged to have been caused by the negligence of the defendant, if the presiding judge orders a verdict for the defendant, and the plaintiff in a bill of exceptions states evidence by which it appears that when the injuries were incurred the plaintiff was not in the exercise of due care, his exceptions to the exclusion of evidence upon the question of the defendant's negligence are immaterial and need not be considered by this court.
SHELDON, J.
Upon the evidence, this accident was due to the plaintiff's own negligence. He was upon the sidewalk of an open street, and started to "trot" across the street, where he knew that there were double electric railway tracks, immediately behind a car upon the track nearest to him. His view of the street was wholly unobstructed. He testified that he looked both ways before starting to cross, and did not see the car that struck him until he had got upon that track. But he was familiar with the street, accustomed to cross it four times a day, and fully understood the danger of so doing. He claimed that his view of the car that struck him was obstructed by the car upon the other track. But if so, he knew of the obstruction, and yet he chose to go across the street on a trot, so that when he became aware of the approaching car he had not time to get out of the way. It cannot be said that he was exercising such care as could be expected of one of his years, because, though aware of the danger, he was exercising no care whatever to guard against it. If the defendant's car had been going a little faster, he would have run into its side instead of getting in front of it; but we cannot see that he is in any better case to maintain his action than he would have been in that event. He simply took a risk, and he has no right to throw the consequences upon the defendant. Murphy v. Boston Elevated Railway, 188 Mass. 8. Young v. Small, 188 Mass. 4. Morey v. Gloucester Street Railway, 171 Mass. 164. Mullen v. Springfield Street Railway, 164 Mass. 450. And see Bartlett v. Worcester Consolidated Street Railway, 189 Mass. 360; Saltman v. Boston Elevated Railway, 187 Mass. 243.
The evidence excluded could have been competent only on the question of the defendant's negligence. But as the plaintiff was not himself in the exercise of proper care, this question was immaterial, and the plaintiff was not harmed by the exclusion of the evidence. Oak Island Hotel Co. v. Oak Island Grove Co. 165 Mass. 260. Sullivan v. Lowell Dracut Street Railway, 162 Mass. 536. Accordingly, we need not consider whether it would have been competent for any purpose. Wolcott v. Smith, 15 Gray, 537.
Exceptions overruled.