The plaintiff was injured by a collision with the defendant’s car. The highway at the place of the accident runs northwesterly and southeasterly. The defendant’s track is near the southwesterly side of the highway, and the plaintiff was driving through a private way that runs nearly at right angles to the road, from a house on the southwesterly side of the road. On the northwesterly side of the private way there is an orchard, and, separating the orchard from the highway is a wall, with a few shrubs and bushes growing along it. At the junction of the private way and the highway, on the northwesterly side of the private way, there is a large clump of lilac bushes, and the first rail of the defendant’s track is nineteen feet from the line of the highway and from these lilac bushes. The defendant’s car was running to the southeast, down a slight grade, and the collision occurred as the plaintiff was driving in a wagon, with a slow horse, from the private way into the street. The car had formerly been a horse car, and it had but four wheels. The question submitted to us is whether there was evidence that the defendant’s motorman was negligent and that the plaintiff was in the exercise of due care.
There was evidence that the car was running very fast, that no gong was sounded, that the motorman did not see the plaintiff *430until he was close upon him, and that he was looking away to one side and talking with a young woman who sat near him, just before the accident. He must have known that this was a dangerous place, where a team might drive out at any time. While the evidence was contradictory as to some of these things, we are of opinion that the jury might properly find that he was not in the exercise of due care.
A more difficult question is whether there was evidence of due care on the part of the plaintiff. According to the testimony, as he drove from the house to the highway, his view was so obstructed by trees and other objects that, if looking constantly, he could only get glimpses of the approaching car. He was seventy-two years of age, and his hearing was slightly impaired, although he testified that he could hear pretty well. He said that he looked and listened, as he was driving his horse at a walk through the private way, and did not see or hear the car. We are of opinion that the jury might find that he was in the exercise of due care in driving to the lilac bushes at the side of the road. According to all the testimony, at that point he could not see an approaching car until he was within nineteen feet of the track. His horse’s head would then be within about ten feet of the rail, and somewhat nearer to the line of passage of the overhanging car. According to his account, he there for the first time saw the rapidly approaching car, and tried with his whip to start his horse from a walk, to cross the track quickly. Very likely if he had tried to stop the horse instantly the accident might have been avoided; but he suddenly found himself in a place of great peril, and was obliged to act without time for reflection. One acting instantly or impulsively for self-preservation, under such conditions, could not be held to such wisdom of choice as would be expected if he had time for deliberation. The jury might find that he acted as persons of ordinary prudence might be expected to act in like circumstances. Assuming that the weight of the evidence tends to support the defendant’s contention that the plaintiff was not in the exercise of due care, we cannot say, as a matter of law, that there was nothing upon this issue for the consideration of the jury.
Exceptions overruled.