Mason v. Boston & N. St. Ry. Co.

• Decision Date: 05 January 1906
• Citation: 76 N.E. 717,190 Mass. 255
• Parties: MASON v. BOSTON & N. ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

190 Mass. 255

76 N.E. 717

MASON v. BOSTON & N. ST. RY. CO.

Supreme Judicial Court of Massachusetts, Middlesex.

January 5, 1906

COUNSEL

Henry

H. Winslow and Henry J. Winslow, for plaintiff.

Richardsons Trull & Wier, for defendant.

OPINION

SHELDON J.

The plaintiff was a passenger on an open car of the defendant. The car was a long one, and was crowded when he got upon it and at first he stood upon the running board, on the right-hand side of the car. Later he took a position with his back towards the front of the car, near the end of the seat which had for its back the partition behind the motorman with one foot inside the car and the other hanging over the side of the car. He paid his fare while standing on the running board. The plaintiff's evidence tended to show that, when the car was about 70 or 75 feet from the place where he intended to alight, he signaled to the conductor and, as the conductor apparently did not see him and did not ring the bell, he rang the bell himself for the car to stop. Shortly after ringing the bell, he stepped down on the running board and started to walk towards the rear of the car to get a bundle which he had left under the third or fourth seat from the front. While so doing, he was struck on the back of his head by a pole of the defendant, thrown down, and injured. This pole had been put in position on the day of the accident to replace an old pole which had been removed. This new pole was so placed that its foot was not quite three feet from the nearest rail. It slanted towards the track, which was laid here around a curve; this pole being on the inside of the curve. As is usually done, the outer rail of the track was laid higher than the inner rail, thus causing a car in going around the curve to lean towards the pole. By reason of the car and pole each leaning towards the other, the distance between them grew less as the distance above the ground increased, and at the height of seven feet from the ground, which was where the plaintiff's head would be when he was standing on the running board of the car, the distance between the pole and the handles on the outside of the car was less than a foot. The outer edge of the running board was 21 inches from the rail, and the distance from the outer edge of the running board to the pole at the ground was 1 foot and 2 1/2 inches. The old pole had been placed about half an inch farther on the ground from the car than the new one, and had stood straight. The inclination of the new pole was such that 7 feet above the ground it was 6 inches nearer the line of the rail than on the ground. There was evidence that a guard rail on the left side of the car was lowered when the plaintiff got on the car, but that it was afterwards raised; and that a guard rail on the right hand side of the car was not lowered at all, though as to this there was contradictory evidence. On this evidence, the defendant asked the court to rule that there was not sufficient evidence to warrant a verdict for the plaintiff. The judge who presided at the trial refused to do this, and submitted the case to the jury, with instructions not in themselves objected to and not reported. The jury found for the plaintiff, and the case comes before us on the defendant's exceptions to the refusal of the ruling which it requested.

1. The defendant contends that the plaintiff was not in the exercise of due care. It contends that the plaintiff by stepping upon the running board placed himself voluntarily, without invitation by the defendant, and merely for his own convenience, in a place of danger, facing to the rear of the car, and taking no precaution to guard against the danger to which he was exposing himself. See Cummings v. Worcester Leicester & Spencer Street Railway, 166 Mass. 220, 44 N.E. 126; Moody v. Springfield Street Railway, 182 Mass. 158, 65 N.E. 29. But we think that this was a question for the jury. Powers v. Boston, 154 Mass....