The plaintiff, Maud E. Wright, having been injured when the car in which she was riding came in contact with the tower wagon, and her due care having been conceded, the only question is whether there was any evidence for the jury of the defendant’s negligence.
It could have been found upon the evidence introduced by her, that as the car overtook the travelling outfit, made up of a pair of horses harnessed to a wagon loaded with hay, to the rear end of which a wagon with an extension tower was attached with the tower so lowered that it projected beyond the rear but not over the sides of the tower wagon, the driver turned to the left in order to pass from off the track. But, while turning on the ice or hard snow, with which the street was coated, the tower wagon swerved, causing the projecting end of the tower to strike the moving car.
It would be difficult to say as matter of law, if nothing further appeared, that the motorman in charge of the car, but who was not called as a witness, took every reasonable precaution to avoid the accident. If the team with its connections had entirely left the track, the situation was plain. The jury could *571have found that the motorman by the exercise of due diligence should have seen that the driver was still moving somewhat sharply to the left, and realized that, from the slippery condition of the surface with the length of the tandem, there was reason to apprehend that, as the tower wagon came around, it might not swing entirely clear of the track. If with this knowledge or means of knowledge the motorman, even when he found the track itself was clear, did not stop the car, but went forward, the jury could say that he failed to appreciate as he should have done either the tendency of the tower wagon to turn away less rapidly than the wagon in the lead, or that the icy condition of the street might cause the wheels to slide in on the ridge of ice and snow, which from the evidence is shown to have sloped toward the outer rail of the track.
But from the testimony of the plaintiff it further appeared, that the speed had been slackened and that the car, having gone partially and safely by, “ gave a sudden start forward.” The inference would not have been unwarranted that, although at first running slowly, the motorman, when he mistakenly deemed the danger to have been passed, incautiously applied more power, which immediately caused the accident. •
We have said in cases of collision between travellers when concurrently using the public ways, that the question of the due care, or negligence of the parties, ordinarily is for the determination of the jury. Hennessey v. Taylor, 189 Mass. 583, 584, and cases cited. It is true that a street car must pass on the track provided for it, but this rigidity of movement, while an important element which may affect their reciprocal duties, does not abrogate them. White v. Worcester Consolidated Street Railway, 167 Mass. 43. O'Brien v. Blue Hill Street Railway, 186 Mass. 446.
It was, therefore, for the jury to decide whether upon all the evidence the defendant as a common carrier had discharged its duty. White v. Worcester Consolidated Street Railway, 167 Mass. 43. Williamson v. Old Colony Street Railway, 191 Mass. 144. Stubbs v. Boston & Northern Street Railway, 193 Mass. 513. Chaput v. Haverhill, Georgetown & Danvers Street Railway, 194 Mass. 218. Lockwood v. Boston Elevated Railway, 200 Mass. 537.
Exceptions overruled.