
    Jennie O. Albee vs. Boston Elevated Railway Company.
    Suffolk.
    March 8, 9, 1911.
    May 18, 1911.
    Present: Knowlton, C. J., Hammond, Braley, Sheldon, & Rugg, JJ.
    
      Negligence, In use of highway, Street railway. Street Railway.
    
    In an action by a woman against a corporation operating a street railway, for personal injuries from being run into by a ear of the defendant as the plaintiff was attempting to cross a public street at half past eight o'clock on an evening late in November when the rain was falling heavily and a very high wind was blowing, the plaintiff testified that she looked twice and saw the car, first when she stepped from the curbstone, which was about seventeen feet from the track, and afterwards when she was about half way between the curbstone and the track, that at this last time the car was about one hundred and twenty-five feet away and was approaching slowly, that she thought that she had time to get across and made the attempt. The evidence tended to show that she had got almost over the farther rail of the track when she was struck by the corner of the fender of the car. The plaintiff also testified that the street at the time of the. accident was substantially deserted, there being in sight only the car which struck her and another car several hundred feet away, which was approaching from the opposite direction. Held, that the questions, whether the plaintiff looked as often as she ought to have looked and as late as she ought to have looked and whether she was justified in thinking that she had time to get across the track ahead of the car, as well as the questions, whether the accident was due to the failure of the motorman to diminish the speed of the car when approaching the plaintiff and whether he was negligent, were for the jury.
    Tort for personal injuries from being knocked down by a car of the defendant on the evening of November 24,1907, in Boston, when the plaintiff, having come from Marlborough Street, was crossing Boylston Street near Arlington Street, in order to take an inbound car on the opposite side of the street. Writ dated January 8, 1908.
    In the Superior Court the case was tried before Harris, J. The evidence is described sufficiently in the opinion. At the close of the evidence, the defendant asked the judge to rule that upon all the evidence the plaintiff was not entitled to recover. The judge refused to make this ruling and submitted the case to the jury, who returned a verdict for the plaintiff in the sum of $2,500. The defendant alleged exceptions.
    
      E. P. Saltonstall, (C. W. Blood with him,) for the defendant.
    
      F. P. Garland, (F. J. Baggett with him,) for the plaintiff.
   Hammond, J.

While the plaintiff was crossing Boylston Street near Arlington Street in Boston at 8.30 o’clock P. M., in November, the rain falling heavily at the time and a very high wind blowing, she came into collision with the left hand corner of the fender of one of the defendant’s cars while it was in motion, and was injured. She testified that she looked and saw the car twice; once when she stepped from the curbstone which was about seventeen feet from the track, and once when she was about half way between the curb and the track; that the last time she looked the car was about one hundred and twenty-five feet away and coming slowly; that she thought she had time to get across and made the attempt. The evidence tended to show that she had got almost over the farther rail of the track when she was hit. She testified farther that the street at that place was substantially deserted, there being only this car and another car several hundred feet away from her approaching from the opposite direction.

Upon all the evidence we are of opinion that the questions, whether she looked as often as she ought to have looked and as late as she ought to have looked, and whether she was justified in thinking that she had time to get over the track ahead of the car, as well as the questions, whether the accident was due rather to the failure of the motorman to slow up when approaching the plaintiff than to any proper lack of judgment on her part, and whether the motorman was negligent, were for the jury. See Hunt v. Old Colony Street Railway, 206 Mass. 11; Hennessey v. Taylor, 189 Mass. 588; McCrohan v. Davison, 187 Mass. 466. The case is distinguishable from Holian v. Boston Elevated Railway, 194 Mass. 74, and other similar cases cited by the defendant.

Exceptions overruled.  