181 Mass. 528 | Mass. | 1902
Upon the evidence in this case, the jury would be warranted in finding that, while the train was stopping at a regular station for the discharge of passengers, some of them, seated in the only ordinary general passenger car of the train, desiring to alight, passed out upon the front platform of the car, and seeing that the right hand gate — which was the one leading to the station platform — was closed and that the left hand gate was open, proceeded to pass out by the latter and in that way alighted from the car; that, while this was going on and while the plaintiff and others who desired to alight were yet upon the platform and steps, the conductor of the train, seemingly unaware of this action" on the part of the passengers and supposing that all who desired had left the train, caused it to be started; that immediately afterwards he saw that several had not left the train who apparently intended to do so, and caused the train to be stopped ; and that (although upon this a finding the other way might reasonably have been expected) the plaintiff, being then upon the steps of the car, was thrown to the ground by the jar in stopping. They further might properly have found that the conductor should have known what was going on, and that in consideration of the high degree of care required of common carriers towards their passengers, the sudden stopping of the car without any warning was under the circumstances a negligent act, and that it contributed to the injury.
It is true there is much to be said in support of the theory that the plaintiff was not thrown from the car at all, that he supposed the car was at a stop and hence voluntarily stepped from it, and this view of the evidence may seem to be the more reasonable, but we cannot say that the jury were bound to take that view of the occurrence.
Upon the question of due care of the plaintiff the case was properly left to the jury. It follows that the first request was properly refused. We understand that the exceptions to the refusal to give the other requests in the form presented are waived.
We do not see how the defendant was harmed by the exclu
“ Q. You said the train had gone about two car lengths, and was going as fast as a man could run, when Mr. Comerford attempted to get off, didn’t you? A. Yes.”
“ Q. Did n’t you then say, Mr. Bryant, this: 11 would not want to swing off when the car was going as fast as it was when Mr. Comerford attempted to do so ’ ? A. I said so at that time, yes.”
With the paper in his hands the counsel thus was allowed to show its precise language by the answer of the witness, and no one contended that the witness did not use the language in the paper. The jury had therefore the fact that the paper contained those statements made in writing by the witness, and they knew the exact language. The exclusion of the paper under these circumstances could work no injury.
As to the absence of brakemen, the jury were instructed that if the absence of the statutory number of brakemen “ had nothing to do with the accident, that is all out of the case,” but “ if the lack of those brakemen in any way helped on this accident, then that is one of the things you may consider in determining whether this railroad was negligent in what took place there.” The defendant contends that the effect of this was to give the jury the right to find for the plaintiff upon a new substantive ground of liability on the part of the defendant, namely, the non-observance of a statutory.requirement. We do not so understand it. The jury were distinctly told that "the plaintiff must prove his case as set out in his declaration, or in other words that he was thrown from the car by a negligent starting or negligent checking of the train. The number of persons at work on the train, whether brakemen or not, might properly be
Exceptions overruled.
