The single exception is to the refusal of the presiding justice to rule that the plaintiff could not recover. *394The counsel for the defendant in his argument before this court concedes that the evidence warranted the jury in finding negligence on the part of the defendant, but he contends that there was not sufficient evidence to warrant the jury in finding that the plaintiff was in the exercise of due care. There was evidence that the plaintiff was walking in the only path or walk in the highway which was intended for travellers on foot, and which it was customary for people to walk in; that the night was dark, the road muddy, and the wind blowing from the sea in his face as he walked along; that the plaintiff listened to hear if anything was coming and heard nothing, and within a distance of less than seven hundred feet turned round twice and looked to see if anything was coming and saw nothing ; that when he was hit by the car he' was from two to three hundred feet beyond the place where he last looked. The track of the defendant at the point where the plaintiff was injured was on the right hand side of the highway in going from Chelsea to Lynn. On the right hand side of the track was the path for foot travellers, and on the right hand side of the path was a wooden fence. Between the side of a passing car and the fence at the place where the plaintiff was injured was a space of about twenty inches. The car was going from twenty to twenty-five miles an hour. There was evidence that the headlight of the car was a small kerosene lamp ; that the highway was not lighted; and that the crossover of the track from the left to the right hand side of the highway was about six hundred and seventy to six hundred and eighty feet before the place where the plaintiff was injured. The car after it hit the plaintiff went a considerable distance beyond — estimated from seventy-five to one hundred and twenty feet — before it was stopped. There was evidence that almost up to the time of the accident the motor man was facing to the left hand side of the highway, and not to the right. The evidence of the plaintiff’s conduct, as testified to by himself and by his companion Keeney, seems to us evidence of due care on his part. The speed and manner in which the evidence showed that the car was run, on a dark night on a track so near to the path for foot travellers, made travelling on the path under the circumstances shown dangerous for even careful persons. Exceptions overruled.