| Mass. | Oct 19, 1900
The evidence for the plaintiff tended to show that as an open electric car of the defendant approached Ames Street in Greenfield, going northerly on Federal Street, one Mrs. Weyraugh, her boy about seven years old, the plaintiff and her daughter, a girl of eighteen, stepped from the easterly sidewalk of Federal Street, and walked diagonally and northwesterly towards the car tracks with the intention of boarding it; that the street at this point was substantially clear of people except upon the sidewalk; that Mrs. Weyraugh was in advance of the others and signalled the motorman by holding up her hand; that the motorman was looking towards her and the plaintiff; that they supposed he saw them ; that the car stopped as they thought at the signal; that Mrs. Weyraugh boarded the car and took her seat; that the plaintiff then assisted the boy to climb in; and that then the plaintiff, with her face towards the front of the car, stepped with her left foot on to the running board, at the same time taking hold with her left hand of an iron handle or brace at the end of and on the level of a seat, into which she intended to go; that as the plaintiff stepped on to the running board the car started forward with a jerk and rapidly, without any signal from the conductor; that she swung round so that she was bumped against the end of the seat into which she was going; that her foot slipped from
The evidence for the defendant tended to show that neither the motorman nor the conductor saw the plaintiff or any of her party until they were seated in the car; that the conductor gave the usual signal to start; and the conductor testified that before doing so he looked from the position he was in, on the left front running board, on both sides of the car, and saw no one trying to get on; that he then gave the signal to start, and that the car started gently and slowly.
The case comes before us on exceptions to the refusal of the court to give three requests of the defendant, except as appears in the charge. These requests were as follows: “ (1) That a person endeavoring to enter an electric car without the knowledge of some person engaged in the running thereof, does not become a passenger until standing or seated in some portion of the car intended for the occupation of passengers while the car is in motion, or until his effort or presence is known to, or in the exercise of a proper performance of his duties, ought to be known to some one of the persons engaged in the running of the car. (2) That if an injury happens to a person from the starting of an electric car as she is entering the same, there can be no recovery from the company operating such car unless its servants in charge thereof omitted some reasonable precaution to assure themselves that no person would be endangered by the starting thereof. (3) That it is not, as matter of law, negligent for a motorman to start an electric car, which he has stopped to take on passengers seen by him, without receiving a signal from the conductor so to do.”
We proceed to consider these in their order.
1. The defendant concedes that a street, in the case of an electric street railway, is a proper place to take a car, because it is the necessary place for persons to present themselves to be carried. It also concedes that, when a street railway company stops its ear in the street, it invites all to become passengers who present themselves then and there in proper condition and manner. It contends, however, that this invitation may be
We think these instructions were sufficiently favorable to the defendant, and that no exception lies to the refusal to give the instruction requested. The accident happened shortly before noon in July. We cannot consider the case on the supposition that the testimony of the conductor and the motorman was to be taken as true. These were witnesses for the defendant, and it was for the jury to say what weight was to be given to their testimony. Moreover, the jury took a view of the car, and may have found that the testimony of the conductor was not true.
The case differs essentially from Pitcher v. People's Street Railway, 154 Penn. St. 560, and 174 Penn. St. 402. In that case a boy, without signalling, attempted to board a horse car which had stopped to let off a passenger. He had one hand on the rail of the front platform, behind the driver, and, when about to place his foot upon the step, was thrown down by the sudden starting of the car. He was not seen by either the conductor or the driver. Under these circumstances it was held that he was not a passenger. In the present case the jury might well have found that a signal was given to the motorman; that he stopped the car in obedience thereto; and that while the plaintiff was partly on the car the conductor gave the signal to start without looking to see whether the plaintiff was wholly on the car or not. There can be no doubt that on the evidence for the plaintiff she was entitled to go to the jury on the issues whether she was a passenger, whether she was in the exercise of due care, and whether the defendant was guilty of negligence. Gordon v. West End Street Railway, 175 Mass. 181" court="Mass." date_filed="1900-01-05" href="https://app.midpage.ai/document/gordon-v-west-end-street-railway-co-6426954?utm_source=webapp" opinion_id="6426954">175 Mass. 181, and cases cited.
2. As to the second request the court instructed the jury as follows: “ I should say a word upon the effect of the motorman’s starting the car without having received a signal from the conductor. I do not say to you, as matter of law, that that would be negligence, but the starting of the car by the motor
We are of opinion that the charge upon this point was also sufficiently favorable to the defendant on the evidence in the case. We have already mentioned the evidence in considering the first point, and it is not necessary to repeat it.
3. The third request is not argued, and it in fact was given.
Exceptions overruled.