Briggs v. Union St. R. Co.

• Decision Date: 28 November 1888
• Parties: BRIGGS v. UNION STREET RAILWAY CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

148 Mass. 72

19 N.E. 19

BRIGGS v. UNION STREET RAILWAY CO.

Supreme Judicial Court of Massachusetts, Bristol.

November 28, 1888

COUNSEL

E.L. Barney, for plaintiff.

Crapo Clifford & Crapo, for defendant.

OPINION

KNOWLTON J.

The first question in this case is whether there was any evidence that at the time of the accident the plaintiff was in the exercise of due care. The plaintiff's conduct, in its relation to the accident, was particularly described in his testimony, and in the absence of any disclosure which according to generally recognized standards of judgment plainly showed it to have been negligent, it was for the jury, and not for the judge, to say whether it was reasonably careful. Whether a person, riding upon the front or rear platform of a horse car, or getting on or off at either platform while the car is in motion, is in the exercise of due care, has repeatedly been decided to be a question of fact for a jury. Meesel v. Railroad Co., 8 Allen, 234; Murphy v. Railway Co., 118 Mass. 228; McDonough v. Railroad Co., 137 Mass. 210.

In this case the plaintiff testified that he was 68 years old, and weighed 190 to 200 pounds; that he signaled to the driver that he wanted to get on, and that the car "slowed up;" that while "it was going about as fast as some horses will walk,--in the neighborhood of four miles an hour," he got hold of the forward rail of the rear platform with his right hand, and of the rear rail on the dasher with his left hand, and made a spring to get on, when his foot struck on the edge of the step and slipped off; that the car had started up, and was going at increased speed; that he made two other attempts to get on, then let go of the forward rail with his right hand, and held to the dasher-rail with both hands, trying to keep up with the car, until he was thrown down and injured. We cannot hold, as a matter of law, that the plaintiff was negligent in trying to get upon the car as he did. It was for the jury to test his conduct by their knowledge and experience, and by their judgment of what men of common prudence would be expected to do under like circumstances.

The court was also requested to instruct the jury that if the plaintiff believed the driver had not seen his signal, his attempt to board the car was negligence. We are of opinion that this instruction was rightly refused. The court cannot say, as a matter of law, that an attempt to step upon a horse...