269 Mass. 60 | Mass. | 1929
This is 'an action brought under G. L. c. 229, § 3, to recover for the death of the plaintiff’s intestate. If it be assumed that at the time of her death she was a passenger of the defendant, the plaintiff might recover under G. L. c. 229, § 3, even if she was lacking in due care, provided her death was due to negligence of the defendant. Jones v. Boston & Northern Street Railway, 205 Mass. 108. Renaud v. New York, New Haven & Hartford Railroad, 210 Mass. 553, 556. Cotter, petitioner, 237 Mass. 68, 72. McCarthy v. Boston, Revere Beach & Lynn Railroad, 262 Mass. 56, 58.
The material facts as shown by the record are as follows: On September 4, 1926, the deceased was a passenger upon
At the time she went upon the platform the steps from which she fell or stepped off had moved approximately five hundred and fifty feet from their original stopping place east of the bridge and had passed passengers on the platform, a stand pipe, eight electric light poles thirty-five feet apart, three posts supporting the awning of the station, and a line of trees located by the side of the highway and running parallel with the station, all of which could have been found to be visible from the steps of the car which the deceased descended for the last four hundred feet of their movement before the accident. There was evidence that when she fell or stepped off the train it was moving at a speed of between twenty and twenty-five miles an hour.
There was further evidence that during the time the train stopped at Gardner no trainman was at the space between the second and third cars from the rear, and no announcement was made at that point by a trainman that the train was about to start; that from the rear end of the car in which the deceased was riding the station could not be seen; that ordinarily this train carried a train crew consisting of the conductor, baggage master and two brakemen; that on the day of the accident there were four additional cars and one extra trainman. It is
The cases of Powers v. Old Colony Street Railway, 201 Mass. 66, and Nute v. Boston & Maine Railroad, 214 Mass. 184, are distinguishable in their facts from the case at bar.
To stop the car in which the plaintiff’s intestate was riding at the place shown by the evidence would not warrant a finding of negligence. It is common knowledge that all the cars in a long train ordinarily cannot be stopped opposite a station platform. Tsatsos v. Boston, Revere Beach & Lynn Railroad, 267 Mass. 365, 367. The circumstance that the trap provided for covering the steps of the coach from which the plaintiff’s intestate stepped or fell was not down at the time of the accident would not warrant a finding of negligence. It had been raised to permit persons to board and to alight from the car at Gardner, and it would not be reasonable to hold that it was the duty of the defendant to close it before the train had passed the station. The record shows that the deceased fell upon the station platform.
At the close of the evidence the defendant filed a motion that a verdict be directed in its favor upon the ground, among others, that there was no evidence of negligence of the defendant. The motion was allowed subject to the plaintiff’s exception. For the reasons above stated the motion was rightly allowed. As there was no evidence of negligence on the part of the defendant, the other exceptions have become immaterial and need not be considered.
It results that the exceptions must be overruled and judgment is to be entered on the verdict.
So ordered.