148 Mass. 343 | Mass. | 1889
It must be considered that the defendant held out no inducement or invitation to the plaintiff to take the train at the place where he took it, but that the jury might find, on the evidence, that the defendant permitted passengers to take trains at' this place, and that the plaintiff, in taking the train, intended to become a passenger; and it is with reference to a person who takes a train under such circumstances, and with such an intent, that the correctness of the instructions asked for must be determined. The plaintiff was not a trespasser in taking the train, and when he had reached in safety the inside of a passenger car, then certainly, if not before, he became a passenger. Merrill v. Eastern Railroad, 139 Mass. 238. After he became a passenger, we cannot distinguish his rights and duties from those of the other passengers.
The injury was caused by a locomotive engine of the defendant company, which was carelessly driven by a servant of the company against the car on the platform of which the plaintiff was standing. There were no vacant seats in the ear which the plaintiff first entered, and he passed towards the rear of the train, through one or two cars, in search of a seat which he did not find. While seeking a seat, he came to the front platform of the last passenger car but one, and was standing upon this platform looking through the door or window of the car in search of a seat; while he was standing in this position, the train continuing its motion at the rate of from five to eight miles an hour, the engine struck the car, checked or stopped
The instructions given to the jury upon the principal question were, in substance, that if the plaintiff was upon the platform of the car, intending to ride there, he could not recover, but if he was there “ in the exercise of reasonable promptness in attempting to secure a seat,” and “ his stop there was a reasonable one,” and “ he was not there for the purpose of riding,” he might recover. In Stewart v. Boston & Providence Railroad, 146 Mass. 605, it is said, “ In going from one car to another of a rapidly moving train, merely for his own convenience, the plaintiff took upon himself the risk of all accidents not arising from any negligence of the defendant.” In the case at bar, the accident arose from the negligence of the defendant’s servant, which must be regarded as the negligence of the company, and the question is whether there was carelessness on the part of the plaintiff which contributed to the injury.
If it be assumed that a passenger who goes from one car to another of a moving train, for the purpose of finding a seat, takes all risks which are obvious or are incident to the motion of the train, yet it cannot be held that he takes the risks of a collision with a locomotive engine or another train. He could not foresee that such a collision was likely to happen, and his going upon the platform of a car would not tend in any degree to bring about such a collision; and if a collision were to occur, it is difficult to say that a position on the platform would be more dangerous than one inside the car. Passengers have the right to assume, in the absence of any warning or evidence to the contrary, that one passenger car is as safe as another, and, if there is no regulation of the company forbidding it, it must be that passengers have the right to go from one car to another while the train is in motion when their convenience requires it, subject to the risks which are incident to such a proceeding.
In the case at bar, we think that there was no want of ordinary care on the part of the plaintiff, so far as any injury from collision was to be apprehended, and that the plaintiff’s conduct did not contribute in any degree to bring about the collision or the injury which resulted from it. There is no evidence that the consequences of the defendant’s negligence could have been
Whether the plaintiff would have been hurt more or less than he was, if he had been inside the car, can only be conjectured, for all the passengers in the car were put in peril because the car was partially overturned by the collision. The plaintiff was injured because he happened to be on one part of the train rather than on another, and not because his position upon the platform peculiarly exposed him to such a danger. We think that the instructions given were sufficiently favorable to the defendant. jExceptions overruled.
