Lynam v. Union Railway Co.

The testimony introduced on the part of the plaintiff, upon which alone, as the defendants properly admit, this case is to be determined, laid before the jury all the circumstances attending the accident, and warranted them in finding that he was in the exercise of due care, and would not have been injured but for the negligence of the defendants’ servants. Mayo *88v. Boston & Maine Railroad, 104 Mass. 137. Smith v. Gardner, 11 Gray, 418. . The cases relating to injuries suffered by being struck by a locomotive engine at a railroad crossing afford no test of the degree of care required of the plaintiff in this case. The cars of a horse railway have not the same right to the use of the track over which they travel, do not run at the same speed, are not attended with the same danger, and are not so difficult to check quickly and suddenly, as those of an ordinary railroad corporation. A person lawfully travelling upon the highway is not therefore bound to exercise the same degree of watchfulness and attention to avoid the one as to keep himself out of the way of the other.

Exceptions overruled.