Kane v. Worcester Consolidated Street Railway Co.

This is an action for personal injuries caused by a collision between a watering cart on which the plaintiff was driving and one of the defendant’s cars. The plaintiff was driving on the right of the track and toward the car, with his left wheels inside zthe right rail. When he began to turn off the track he turned to the left, across the track, and his cart was struck. The case is here on exceptions to the instructions given and refused at the trial. We are embarrassed in dealing with the case by the fact that we cannot doubt that the presiding judge perfectly understood the rudimentary principles of law *202which he was called on to state. Indeed he stated them in the course of his charge, and it may be that if we could have heard the trial we should have been satisfied that the jury were not misled. But on the question of the plaintiff’s turning to the right or the left, upon which it was not denied that be had a right to go to the jury, the jury were told in various forms that a mistake of judgment on the plaintiff’s part as to which was the safer course would prevent his recovery. This was an error, unless the judge was prepared to direct a verdict for the defendant. A choice may be mistaken and yet prudent.

Exceptions sustained.