Sweetland v. Lynn & B.R. Co.
| Decision Date | 26 February 1901 |
| Citation | 59 N.E. 443,177 Mass. 574 |
| Parties | SWEETLAND v. LYNN & B. R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Jos F. Hannan and Wm. H. Niles, for plaintiff.
H. F Hurburt and D. E. Hall, for defendant.
There was evidence of negligence on the part of the defendant's motorman in running the car. The car was about to pass over a frog at a curve where the defendant's rules required that cars should not be run faster than 4 miles an hour, and there was testimony that the car was suddenly started up just before it reached the frog, and was going at the rate of 12 or 15 miles an hour when it struck the frog and threw the plaintiff off. There was also evidence from which the jury might find that the plaintiff was in the exercise of due care, notwithstanding that he was riding on the front platform of the car, unless he was acting in violation of one of the defendant's rules in being there. Ordinarily it is a question of fact for a jury whether a passenger riding on the front platform of an electric car or a horse car is in the exercise of due care. Lapointe v Railroad Co., 144 Mass. 18-21, 10 N.E. 497; Cummings v. Railway Co., 166 Mass. 220, 44 N.E. 126; Wilde v. Railroad Co., 163 Mass. 533, 40 N.E. 851; Beal v. Railway Co., 157 Mass. 444, 32 N.E. 653.
The remaining question in the case relates to the effect of a sign attached to the hood of the car before and at the time of the accident, which read as follows: This purports to be a prohibition of passengers from riding on the front platform, and not a notice stating the terms on which they may ride there. The judge rightly instructed the jury that such a rule would be reasonable (O'Neill v. Railroad Co., 155 Mass. 371, 29 N.E. 630), and that, if the plaintiff was intentionally violating the rule, he could not recover (Dodge v. Steamship Co., 148 Mass. 207, 19 N.E. 373, 2 L. R. A. 83; Wills v. Railroad Co., 129 Mass. 351). But the jury were permitted to find that notwithstanding the sign, the rule, if it ever was intended to be a rule, had been allowed by the defendant to become a dead letter, so that in effect the case was as if there never had been such a rule. We have no doubt that a railroad company, after making a rule in regard to the conduct of passengers, may waive and abandon it, and treat passengers as if it had never existed, and thus lead them to believe that the rule is no longer in...
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