Brown v. New York, N.H. & H.R. Co.

• Decision Date: 22 May 1902
• Citation: 181 Mass. 365,63 N.E. 941
• Parties: BROWN v. NEW YORK, N.H. & H. R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

181 Mass. 365

63 N.E. 941

BROWN v. NEW YORK, N.H. & H. R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 22, 1902

COUNSEL

Foster Rogers, for plaintiff.

Charles F. Choate, Jr., for defendant.

OPINION

KNOWLTON J.

The plaintiff on August 10, 1899, took the defendant's train from Boston to North Abington, where he arrived at 45 minutes after 5 o'clock in the afternoon. He started to alight from the train, and, on reaching the door of the car discovered that he had left his umbrella in his seat, and went back for it. He found that it had been taken out by his friend at the other end of the car, and, returning to the door from which he had gone back, he stepped out upon the platform of the car, and got off after the train had started. He fell, and was injured, and now seeks to recover compensation for his injury.

We do not consider the question whether there was negligence on the part of the brakeman or conductor in allowing the train to start before the plaintiff had alighted, for we are of opinion that there was no evidence that he was in the exercise of due care in getting off as he did. It is a general rule that a passenger who attempts to get on or off a railroad train while it is in motion is not in the exercise of due care. Merritt v. Railroad Co., 162 Mass. 326 38 N.E. 447, and cases there cited. The question in a case like the present is whether there is evidence that takes it out of the general rule. The plaintiff was very familiar with the place. For nearly 35 years he had traveled back and forth by train nearly every day between North Abington and Boston. When he alighted there was no person in his way, and nothing to obscure his vision. Although he says it was a dark drizzling evening, daylight had not gone, for a quarter before 6 o'clock on August 10th is a long time before sunset. There was a kerosene light 10 or 12 feet from where he stepped off, under the roof which covered the platform, and he testified that he could have seen it if he looked around. There was also a truck on the platform nearly opposite the place where he stepped off, which he saw while he was on the platform of the car. He testified that his sight was good, and there was nothing to distract his attention as he was getting off. He also testified that he did not look to see if the train was moving; that he did not look at all, but got off the train without looking. If the plaintiff knew that the train was moving when he stepped down from it, he was not in the...