Negligence. Elevated Railway. In an action against a corporation operating an elevated railway for an injury from particles of metal thrown out in the operation of the railway falling into the plaintiff's eye as he was passing under the elevated structure and looked up when he heard the noise of a train overhead, there was evidence that at the time of the accident a shower of such metal particles called "sparks" came down, that showers of sparks descended from the elevated structure with great frequency, that the sparks were or might be thrown out by reason of the friction of the contact shoe upon the third rail which supplied the electricity for moving the defendant's trains, that by the adoption of a different kind of shoe the injurious "sparking" might be avoided, or that a shield could be placed underneath the third rail to prevent the falling of the sparks into the highway. Held, that the question of the due care of the plaintiff in looking up as the train was passing overhead, the question whether the particles that got into the plaintiff's eye came from the train, and the question whether the defendant did all that reasonably could be required of it to prevent sparks from falling and injuring persons using the street beneath, were for the jury with proper instructions from the presiding judge. Following Woodall v. Boston Elevated Railway, ante, 308.
MORTON, J.
This case is governed by Woodall v. Boston Elevated Railway, ante, 308. It cannot be said as matter of law that the plaintiff was not in the exercise of due care because he looked up as the train was passing overhead, or that there was no evidence which would warrant a jury in finding that the particles which got into his eye came from the train on the elevated railway. Whether the defendant did all that could reasonably be required of it to prevent sparks from falling and injuring pedestrians and others using the street beneath was a question, under proper instructions, for the jury. This and the other questions raised are considered in the case above referred to, and need not be further considered here.
Exceptions sustained.