The defendant contends that that deprives the plaintiff of the right to require fellow travellers to exercise reasonable care to avoid collision, under the rule laid down in Dudley v. Northampton Street Railway, 202 Mass. 443. See also Farr v. Whitney, 260 Mass. 193; Widronak v. Lord, 269 Mass. 238; Cook v. Cole, 273 Mass. 557; Balian v. Ogassin, 277 Mass. 525, 530; Perry v. Stanfield, 278 Mass. 563, 569, 570; Potter v. Gilmore, 282 Mass. 49; Janusis v. Long, 284 Mass. 403. The regulation in question does not bar from the highways vehicles not conforming to it, as did the statute as to the registration of automobiles considered in the Dudley case, just cited. The rule of that case does not apply.
Newcomb v. Boston Protective Department, 146 Mass. 596. Lynn Gas Electric Co. v. Meriden Fire Ins. Co. 158 Mass. 570. Black v. New York, New Haven Hartford Railroad, 193 Mass. 448, 450. Perry v. Stanfield, 278 Mass. 563, 570. Wall v. King, 280 Mass. 577, 580.
She was aged and ill and at 10 P.M. she sought her bed in the apartment which the defendant had rented to her. No sign or barrier or voice then indicated that her entrance to the building was dangerous. The fact that when she reached her apartment she noticed an odor of gas, or her conduct up to the time she lost consciousness, did not require a finding that she was not in the exercise of due care. That question, as commonly, was here a question of fact. Perry v. Stanfield, 278 Mass. 563, 572. It could not properly have been ruled as matter of law that the defendant had sustained the burden of showing the plaintiff was lacking in due care. Order dismissing report affirmed.
" See also Delaware, L. W.R. Co. v. Scales, 18 Fed. (2d) 73; Prince Line v. American Paper Exports, 55 Fed. (2d) 1053. In Perry v. Stanfield, 278 Mass. 563, the court held that the question of the jurisdiction of the lower court over the subject matter of the case, being one for damages for a collision of vessels occurring on inland navigable waters of the United States, "was raised by a request for ruling presented to the trial judge. Since it touches the jurisdiction of the court to entertain the case, it must be determined, although not argued in the defendant's brief.
Oppenheim v. Barkin, 262 Mass. 281, 283, 284. Perry v. Stanfield, 278 Mass. 563, 572. Cycz v. Dugal, 295 Mass. 417, 418.
The distinction is between that which directly and proximately produces, or helps to produce, a result as an efficient cause, and that which is a necessary condition or attendant circumstance of it." Newcomb v. Boston Protective Department, 146 Mass. 596, 604. Falk v. Finkelman, 268 Mass. 524. Perry v. Stanfield, 278 Mass. 563, 570-571. Wall v. King, 280 Mass. 577. Stowe v. Mason, 289 Mass. 577, 583. Leveillee v. Wright, 300 Mass. 382, 387-388.
In them the rule of law is laid down with abundant citations. See Smith v. Locke Coal Co. 265 Mass. 524; Falk v. Finkelman, 268 Mass. 524, 527; Milbury v. Turner Centre System, 274 Mass. 358; Perry v. Stanfield, 278 Mass. 563; Wall v. King, 280 Mass. 577; Morrison v. Medaglia, 287 Mass. 46; Mair v. Whittemore Co. 289 Mass. 261; Stowe v. Mason, 289 Mass. 577; Wallace v. Ludwig, 292 Mass. 251. In Wallace v. Ludwig, 292 Mass. 251, where there is a review of cases, it is said (page 255), "The result of these decisions is that the primary cause may be the proximate cause, provided it continues to be efficiently, actively, and potently operative, although successive subsidiary instrumentalities may cooperate to produce the final result."
Behmer v. Worcester Consolidated Street Railway, 253 Mass. 494. Falk v. Finkelman, 268 Mass. 524, 527. Perry v. Stanfield, 278 Mass. 563, 571. Kaufman v. Boston Dye House, Inc. 280 Mass. 161, 169.
Patrican v. Garvey, 287 Mass. 62. See also Farr v. Whitney, 260 Mass. 193; Perry v. Stanfield, 278 Mass. 563, 569, et seq.; Potter v. Gilmore, 282 Mass. 49, 51; Janusis v. Long, 284 Mass. 403, 410. That principle is not involved in the present case on this record, for the defendant did not rely upon it in his discussion with the judge.
How much of the plaintiff's testimony was worthy of credence was for the trial judge. First National Bank of Boston v. Sheridan, ante, 338. Whether the plaintiff with respect to his injury was in the exercise of due care or was contributorily negligent was on all the evidence a question of fact. McSorley v. Risdon, 278 Mass. 415, 416. Perry v. Stanfield, 278 Mass. 563, 572. The testimony afforded ample foundation for a finding of want of due care and of contributory negligence on his part.