Wills v. Lynn & Boston Rail-Road Co.

• Decision Date: 10 September 1880
• Citation: 129 Mass. 351
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Isabella Wills, administratrix, v. Lynn & Boston Rail-Road Company

129 Mass. 351

Isabella Wills, administratrix, v. Lynn & Boston Rail-Road Company

Supreme Court of Massachusetts

September 10, 1880

Suffolk. Tort against a street railway corporation, for personal injuries occasioned to John Wills, the plaintiff's intestate, by falling from the defendant's car. Trial in the Superior Court, before Wilkinson, J., who directed a verdict for the defendant, on the ground that the plaintiff had not offered any evidence sufficient to warrant the jury in finding that her intestate was in the exercise of due care at the time of the accident and reported the case for the determination of this court. The facts appear in the opinion.

Judgment on the verdict.

B. E Perry & C. P. Gorely, for the plaintiff.

W. W. Warren, for the defendant.

Colt, J. Endicott & Soule, JJ., absent.

OPINION

Colt, J.

It is for the plaintiff to prove that her deceased husband was free from negligence contributing to the injury which he received from the acts of the defendant corporation. She cannot recover, if the case she presents fails to disclose the exercise on his part of ordinary care, as judged of in the light of common knowledge and experience. The rule is to be applied which requires the exercise of such care as men of common prudence usually exercise in positions of like exposure and danger. The question is in most cases a question to be submitted to the jury, but when the circumstances are not complicated, and the undisputed evidence discloses conduct which would be condemned as careless by men of common prudence, it is the duty of the judge to instruct the jury to find a verdict for the defendant. Gavett v. Manchester & Lawrence Railroad, 16 Gray 501. Gahagan v. Boston & Lowell Railroad, 1 Allen 187. Todd v. Old Colony & Fall River Railroad, 7 Allen 207. Hickey v. Boston & Lowell Railroad, 14 Allen 429. See also Baltimore City Passenger Railway v. Wilkinson, 30 Md. 224.

It appears in this case, from uncontradicted evidence, that Wills, the plaintiff's intestate, on the night of this accident, got on the front platform of the defendant's car, and remained standing in that place until the car approached a drawbridge on the road, when he sat down on the platform with his feet on the step. He was told by the driver of the car that he had better not sit in that place, as it was against the rules of the company and unsafe, to which Wills made a reply not understood by the driver. Wills continued however to occupy his sitting position on the side of the platform while the car was detained at the bridge some fifteen minutes by an open draw; and remained there until he fell from the car after it had passed the...