| Mass. | Nov 28, 1894
This case was tried without a jury, and the judge found for the defendant. A new trial cannot be granted unless we can see that the plaintiff sustained the burden of proof resting upon him to show a want of due care on the part of the defendant, by evidence which the judge was legally bound to accept as conclusive. Where the verdict or finding is against the party having the burden of proof, there is always a difficulty in saying that, as matter of law, it should have been the other way. In this case, it would seem from the bill of exceptions that at the Montello station the engine stopped at the water standard, which would leave the cars alongside of the station platform ; and it is stated that all the passengers left the train. The train stopped about two minutes, and then went on to the north for a short distance in order to be switched back upon another track, Montello being the end of its route. Nobody appears to have seen the plaintiff’s intestate leave the car, and, so far as is disclosed the next that was seen of him was, that shortly after-wards a switchman saw him lying beside the track about thirty-five or forty feet north of the north end of the platform; and some one who was not a witness was then assisting him to his feet. He was much injured, and died about six hours later. The circumstances of his receiving the injury were not more particularly disclosed, and perhaps could not be. The negligence now relied on is, that the passenger during' his journey was obviously sick, and that the defendant ought therefore to have looked after him, to have helped him out of the car, and to have seen that he reached a place of safety, and that it failed to do so. This argument could be urged with force before the tribunal having to pass upon the question of negligence. We cannot know exactly how the facts appeared to the mind of the judge, or say, as matter of law, that his finding was wrong.
Exceptions overruled.