The collision between the car and the deceased took place in the daylight at or near one of the usual stopping places of the cars. The deceased saw the car and attempted to cross the street in front of it. He and the car were travellers on the public way, with the reciprocal rights and duties of such travellers. Each was bound to use due care to prevent a collision.
The case is close. It is unnecessary to state the evidence in detail. It is conflicting, but upon a careful reading of it we are of opinion that the questions whether, in deciding to cross in front of the car, or in the manner of carrying out that intention, or in any other respect the plaintiff was careless, and generally whether either party was careful or careless, were for the jury.
We are also of opinion that there was no evidence of gross negligence. To hold otherwise would be going further than the decision in the cases of Beale v. Old Colony Street Railway, 196 Mass. 119, and Berry v. Newton & Boston Street Railway, 209 Mass. 100, which must be regarded as the extreme limit to which the doctrine of gross negligence in this class of cases can go.
It follows that in the first action, which was brought for the death, the exceptions are overruled; and in the second, which was brought for conscious suffering, the exceptions are sustained.
So ordered.