McDonough v. Metropolitan R. Co.

• Decision Date: 10 May 1884
• Citation: 137 Mass. 210
• Parties: I. McDonough v. Metropolitan Railroad Company
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

137 Mass. 210

I. McDonough v. Metropolitan Railroad Company

Supreme Court of Massachusetts

May 10, 1884

Suffolk. Tort for personal injuries occasioned to the plaintiff by the negligence of the defendant. At the trial in the Superior Court, before Rockwell, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.

Exceptions overruled.

W Gaston & E. O. Shepard, for the defendant.

S. B Allen & J. P. Farley, Jr., for the plaintiff.

W Allen J. Field, J., did not sit. Devens & Colburn, JJ. absent.

OPINION

W. Allen

The plaintiff, a boy of the age of thirteen years and five months, accustomed to ride in horse cars, attempted to get upon the front platform of the defendant's car while it was in motion, and was thrown down and injured; it was upon the Lord's day, and the plaintiff's object in taking the car was to travel upon it, but not for any purpose of necessity or charity. Three questions are presented in the exceptions; whether there was evidence of negligence in the driver of the car which caused the injury; whether there was evidence that the plaintiff was in the exercise of due care; and whether the plaintiff was a passenger upon the car.

1. The evidence of the plaintiff tended to prove that, when he saw the car coming, he, with another boy, left the sidewalk where they had been waiting, crossed the street, and stood by the side of the track; that the car stopped less than two car-lengths from the place of the accident, and started with a "tow-horse" attached; that the grade was rising; that the horses started on a walk, and, at the time the plaintiff attempted to get upon the platform, were just beginning to trot, or going at a slow trot; that, when the car approached the plaintiff, he signalled the driver to stop; that the driver saw him, and turned to speak to the tow-boy, who was on the front platform on the opposite side of the car from the plaintiff; that the plaintiff's companion got upon the front platform; that, as the plaintiff was getting upon it, with one foot upon the step and holding to the railings with both hands, the driver and the tow-boy started up the horses, giving the car a jerk by which the plaintiff's foot was thrown off the step, and, after being dragged a few feet, he fell and the wheel passed over him.

The argument for the defendant is, that the only inference the jury could draw from this evidence is that the driver properly refused to stop his car on a rising grade, and signified that to the plaintiff, and had no reason to suppose that the plaintiff would attempt to get upon the front platform. But the jury were not bound to draw that inference; on the contrary, they may have believed, from the evidence, that the driver, knowing that the plaintiff intended to get upon the front platform of the car, instead of forbidding it, started up his horses. There was some evidence that not only the signal to the driver, but the position and movements of the plaintiff at the time, indicated to the driver that the plaintiff intended to step upon the front platform. If the jury found that the driver believed that the plaintiff was getting upon the car, there was sufficient evidence of negligence of the defendant.

2. The defendant contends that the fact that the plaintiff attempted to get upon the front platform of the car while it was in motion should be held by the court as conclusive that he was not in the exercise of due care. There is no rule of law that riding or stepping upon the front platform of a horse car when in motion is negligent. See Meesel v. Lynn & Boston Railroad, 8 Allen 234; Cram v. Metropolitan Railroad, 112 Mass. 38; Maguire v. Middlesex Railroad, 115 Mass. 239; Murphy v. Union Railway, 118 Mass. 228; Wills v. Lynn & Boston Railroad, 129 Mass. 351; Fleck v. Union Railway, 134 Mass. 480.

Whether any particular act of that kind is negligent must depend upon the circumstances attending and characterizing it, and must ordinarily be determined by the judgment of a jury. In this case, where the circumstances are disclosed in the evidence, and there is conflicting testimony in regard to them, and disputed inferences of fact are to be drawn, the court would not be authorized to take the case from the jury, unless the act, as proved by undisputed testimony, is seen to be such that the common judgment of men immediately pronounces it to be negligent.

It does not appear that the act was prohibited by the defendant. There is nothing in the case to show that the defendant did not invite its passengers to enter cars by the front as well as by the rear platform. There was no rule or notice prohibiting it. The platforms were alike fitted for such use and, as matter of common knowledge, were both used for that purpose, and both occupied by passengers; and the jury might well have found that the public were invited to use both. There was no evidence that passengers were not permitted, and impliedly invited, to get upon the cars when in motion; and such invitation might be implied if cars were commonly used in that way without objection, or if such use were consistent with due care. It is unnecessary to consider what inference in this respect the jury might have drawn,...