181 Mass. 365 | Mass. | 1902
The plaintiff on August 10, 1899, took the defendant’s train from Boston to North Abington, where he arrived at forty-five minutes after five o’clock in the afternoon. He started to alight from the train, and on reaching the door of the car discovered that he had left his umbrella in his seat and went back for it. He found that it had been taken out by his friend at the other end of the car, and, returning to the door from which he had gone back, he stepped out upon the platform of the car and.got off after the train had started. He fell and was injured, and now seeks to recover compensation for his injury.
We do not consider the question whether there was negligence on the part of the brakeman or conductor in allowing the train to start before the plaintiff had alighted, for we are of opinion that there was no evidence that the plaintiff was in the exercise of due care in getting off as he did. It is a general
The plaintiff was very familiar with the place. For nearly thirty-five years he had travelled back and forth by train nearly every day between North Abington and Boston. When he alighted there was no person in his way and nothing to obscure his vision. Although he says it was a dark, drizzling evening, daylight had not gone, for a quarter before six o’clock on August tenth is a long time before sunset. There was a kerosene light ten or twelve feet from where he stepped off, under the roof which covered the platform, and he testified that he could have seen it if he had looked around. There was also a truck on the platform nearly opposite the place where he stepped off, which he saw while he was on the platform of the car. He testified that his sight was good, and there was nothing to distract his attention as he was getting off. He also testified that he did not look to see if the train was moving; that he did not look at all, but got off the train without looking. If the plaintiff knew that the train was moving when he stepped down from it, he was not in the exercise of due care and he cannot recover. If he did not know it, there is no evidence that he was in the exercise of due care in getting off without knowing it. The evidence tends to show that if he had paid any attention to the familiar surroundings he could not have failed to notice that the train had started. To say nothing of the platform and other objects, the truck which he saw while he was on the platform of the car would have shown him that the train was in motion if he had looked ; so would the kerosene light; but he chose to get off without looking or paying attention to the train or his surroundings. The circumstances disclosed by the evidence have no tendency to show that he would have failed to discover the movement of the train if he had been in the exercise of ordinary care. Indeed, they indicate that the accident happened because he used no care. While the burden was on him to prove that he was carefully trying to alight safely, he fails to show that he was
Exceptions overruled.