The opinion
Hoar, J.
The exceptions show that a principal issue in the cause was upon the unreasonable or negligent conduct of the defendants in the use of the highway, at the time the plaintiff’s intestate received the injury for which she seeks to recover compensation. We think their habits at other times had no legitimate bearing upon this issue, and that evidence respecting such habits was properly excluded. If their use of the highway at that time was reasonable and lawful, the plaintiff could have no greater rights because on other occasions they had been guilty of misconduct. Robinson v. Fitchburg & Worcester R. R. Co. 7 Gray, 92 . They could not have shown their general carefulness as an excuse for their conduct at the time in question. Tenney v. Tuttle, ante, 185. The cases cited by the plaintiff depend upon a different principle, where the acts proved might fairly be regarded as designed to be a preparation for, or commencement of, the principal fact to be established. Com monwealth v. Merriam, 14 Pick. 518 .
*190 2. The plaintiff’s evidence was not as to the conduct or condition of the flagman at the time of the accident, but was offered to prove that the defendants were negligent in employing an intemperate and incompetent person. This raised directly the question as to his general habits and behavior, and it was therefore right to allow the defendants to show that he was careful, attentive, and temperate. Robinson v. Fitchburg & Worcester R. R. Co. ubi supra. This was a fact which could be proved by witnesses who had seen his conduct, and could testify to the facts which they had observed. It did not require that they should be experts.
3. It was undoubtedly true that the defendants could not lawfully use the highway as a part of their freight yard ; that is to say, they had no right to make the exclusive use of it which their own convenience required, which they could make of their own property. But they could pass and repass upon the highway for any lawful purpose, provided, they used it only to a reasonable extent, and in a reasonable manner, without encroaching upon the rights of others who had an equal right to use it. The question of the mode and reasonableness of this use was rightly submitted to the jury.
4. The question, whether the plaintiff’s intestate exercised due care, or by his own carelessness contributed to the injury which he received, was a question of fact for the jury, if there were any facts in dispute, or if there were any evidence upon which it was competent for the jury to find that he used ordinary care. But it has long been settled in this commonwealth that it is incumbent upon the plaintiff to show, by affirmative evidence, that he was in the use of due care; and upon this point he has the burden of proof. Adams v. Carlisle, 21 Pick. 146 . When, therefore, a plaintiff offers no evidence that he was in the exercise of care, but, on the contrary, the whole evidence on which his case rests shows that he was careless, we have held that the court may rightfully instruct the jury as a matter of law that the action cannot be maintained. Lucas v. Taunton & New Bedford Railroad, 6 Gray, 64 . Gilman v. Deerfield, 16 Gray. Gavett v. Manchester & Lawrence Railroad, 16 Gray,.
*191 We are of opinion that the conduct of the plaintiff’s intestate, as reported, brings his case clearly within this rule; no reason whatever appearing to justify him in attempting to pass between cars in motion, propelled by an engine. The plaintiff’s counsel argues, that, to sustain the ruling at the trial, it must appear to the court that, under no possible combination of circumstances, it could have been possible for him to make the attempt without negligence. But we do not so understand the effect of the exceptions. The ruling of the presiding judge at the trial was upon the case presented. If the evidence which the plaintiff offered was simply of such conduct on the part or the person injured as is described in the hypothetical case put to the jury in the instructions of the judge, we can have no doubt that it did not, as a matter of law, tend to show ordinary care on his part. If there were any other facts or circumstances in.evidence tending to qualify or control the effect of this, they should have been stated in the bill of exceptions.
Judgment on the verdict.