Black v. Boston Elevated Railway Co.

[After the foregoing statement of the case.] We are of opinion that the ruling was right. To recover, the burden was on the plaintiff to prove that the collision was caused by the negligence of the defendant. In place of proving that, so far as the proof went it showed that it was caused by the negligence of the driver of the cart. The case which the plaintiff made out was the case of the driver of an unlighted cart on an unlighted street, in the night time, driving along without seeing a car on an intersecting street until his horse’s head was within ten or twelve feet of the track, although on his own testimony he might *174have seen the car when it was one hundred feet or less away from the intersection of the two streets, and when he was within five hundred feet of the corner. The car was not running at an excessive rate of speed, and the motor was reversed a second or so before the collision, apparently as soon as the wagon emerged from the darkness into the space lighted by the lights of the car. See in this connection Hamilton v. West End Street Railway, 163 Mass. 199.

The plaintiff has argued that on the only testimony as to lights on the street, on which the cart was being driven it might be found by the jury to mean that there was no light which enabled the driver to see the motorman on the car platform. If that is so, the plaintiff failed to'prove that the street was lighted, and the result is the same ; it must be assumed not to have been lighted.

Exceptions overruled.