
    Patrick Hurley vs. West End Street Railway Company.
    Suffolk.
    November 14, 1901.
    January 4, 1902.
    Present: Knowlton, Lathrop, Hammond, & Loring, JJ.
    
      Negligence, Contributory.
    One, who coming from an intersecting street drives across the tracks of an electric railway on a street where he knows that cars are running all the time and doés not look to see whether a car is coming merely because he hears no gong sound, is not in the exercise of due care.
    Tort for injuries caused by the alleged negligence of the defendant in running one of its cars into a delivery wagon in which the plaintiff was driving across the tracks of the defendant on Fourth Street in that part of Boston called South Boston: Writ dated September 29, 1897.
    In the Superior Court Lilley, J. directed a verdict for the defendant ; and the plaintiff alleged exceptions, which, after the resignation of Lilley, J., were allowed by Bell, J.
    
      C. F. Cronin & G. A. Mealy, for the plaintiff.
    
      G. H. Méllen, for the defendant.
   Lathrop, J.

On August 17,1897, at ten o’clock in the forenoon, the plaintiff, a man thirty-six years of age, was driving at a dog trot, in a light grocery delivery wagon, on A Street towards Fourth Street in South Boston. At the intersection of these streets one of the hind wheels of his wagon was struck by an electric street car, and the plaintiff was thrown on to the shafts, and was injured.

The only question before us is whether the judge who tried the case was right in ruling that the plaintiff was not in the exercise of due care, and in taking the case from the jury. We are of opinion that the judge was right. It is apparent from the plaintiff’s testimony that he knew that electric cars were running all the time on Fourth Street; that he did not look to see whether a car was coming or not; and that he knew nothing of the car until either it hit his wagon or was the distance of a rail away, and so right upon him. He testified both ways on this point. The only excuse he offers is that he did not suspect the car was coming because he did not hear the gong sound.

It is apparent from the testimony of the plaintiff that he entirely failed to do for his safety what ordinarily careful persons are accustomed to do under like circumstances. Kelly v. Wakefield & Stoneham Street Railway, 175 Mass. 331.

Exceptions overruled.  