This is an action of tort to recover for personal injuries received by the plaintiff when she fell in alighting from a train of the defendant at the Reading station on the evening of November 26, 1953. As to the defendant’s negligence, she specified “that she was obliged
The plaintiff testified that she was a passenger on a train of the defendant which arrived at the Reading station at about 10:30 p.m. She was wearing a heavy coat and carrying a pocketbook and suitcase. When the train stopped she picked up her suitcase, carried her pocketbook over her left arm, wrapped her coat around herself, walked to the platform and stood there. The conductor who was on the ground said “May I take your bag, Miss?” She said “Yes,” and handed it down to him. “ [ S ] he went down the stairs slantwise, and there was a railing . . . she hit the bottom step and then turned and faced him; it was dark and kind of rough gravel on the bottom; . . . she could see little pieces of rock and that’s why she waited to be helped; as she was standing on the bottom step the conductor put his hand under her arm (indicating) and she relied on it and when she stepped off it was withdrawn; she went down and landed on her left knee.”
On cross-examination she testified that she was not sick, infirm or disabled in any way; that at no time after she fell did she say anything to anybody including this conductor about any offer and withdrawal of help; and that she told her physician with whom she discussed the matter on November 30,1953, that the step was just too high without help. When asked if she meant it when she told him that, the plaintiff answered " That’s right, I didn’t get any help. ’ ’
She admitted that in a statement made by her to a representative of the railroad she said, “No assistance was given me by the brakeman as I was getting off. . . . The whole cause of my fall was the heighth of the bottom steps above the station platform.” She testified on redirect examination, however, that at the time the statement was taken she
The plaintiff introduced a rule of the defendant relating to passenger conductors which stated “They must see that necessary assistance is rendered from the station platform to passengers when boarding or leaving the train. ’ ’ At the conclusion of the evidence the judge, subject to the defendant’s exception, denied its motion for a directed verdict and the jury returned a verdict for the plaintiff.
The defendant urges that the plaintiff, having made different statements as to the cause of her fall, must be held to have finally adhered to a contention that it was caused by the height of the step rather than by a withdrawal of assistance on the part of the conductor (see Sullivan v. Boston Elev. Ry.
There was no error in the denial of the defendant’s motion for a directed verdict. The jury would have been warranted in finding that the conductor attempted to assist the plain
The defendant’s principal exception is to the judge’s charge. He instructed the jury that “Ordinarily it is not the duty of the servant of the carrier to assist passengers to alight when no request for aid is made and the necessity for it is not apparent; but where the carrier’s servant undertakes to assist the passenger, he owes to him only the duty of reasonable care. It is for you to determine on the evidence whether the conductor here offered to assist and whether under the particular circumstances with this lady with her suitcase in one arm and pocketbook in the other, whether the circumstances warranted a finding that there were these conditions that would warrant the assistance given. As I say, there is no actual duty or obligation to assist in regard to any passenger, but if assistance is offered under certain circumstances then the carrier’s servants must exercise a duty of reasonable care . . ..”
Thereafter, apparently in response to suggestions by the defendant’s counsel, he charged the jury as follows: ‘ ‘ [T]he jury must return a verdict for the defendant unless it finds that an employee of the defendant rendered or attempted to render assistance to the plaintiff in alighting from the train, that he did so carelessly by withdrawing the assistance, and that she was caused to fall thereby; and next the jury must return a verdict for the defendant unless it finds that an employee of the defendant offered assistance to the plaintiff in alighting from the train, that he then withdrew the assistance and that the withdrawal caused her to fall; and next that the jury must return a verdict for the defendant if it finds that the plaintiff was negligent, however slightly, and
“The defendant duly excepted to the last sentence of the above quoted part of the instructions; and to the instructions of the court to the extent that they indicate that the jury might find the defendant negligent in failing to render assistance to the plaintiff, with particular reference to there being sufficient evidence for the jury to find any apparent need for assistance. ’ ’
It may be conceded that in view of the plaintiff’s specifications no issue was presented whether in the performance of his duty the circumstances required the conductor to assist the plaintiff. See Moody v. Boston & Maine R.R.
Exceptions overruled.