195 Mass. 159 | Mass. | 1907
The original plaintiff at the time of the accident was being transported as a passenger in an open car used by the defendant in the operation of its railway. After becoming a passenger, and while standing on the running board, he was injured by coming in contact with a “ box wagon,” which was passing through the street. The evidence as to his position and conduct was given by fellow passengers, who witnessed the accident. Upon this testimony, with evidence of his declarations given by his daughter, the jury could have found that upon boarding the car it was so crowded that passengers were standing on the rear platform and the running board. By taking the place where he stood when injured, it cannot under such conditions be said as matter of law that he was negligent, and this question should have been submitted to the jury. Pomeroy v. Boston Northern Street Railway, 193 Mass. 507, and cases there cited.
The degree of care which the defendant was required to exercise has been often defined as such reasonable diligence for the safety of passengers as the nature of its business demanded. See Dodge v. Boston & Bangor Steamship Co. 148 Mass. 207; Galligan v. Old Colony Street Railway, 182 Mass. 211, 214, 215; Pomeroy v. Boston & Northern Street Railway, ubi supra. Upon this question the evidence was uncontroverted. It appears that as the car was running on the main track, it came to a switch opening into a track which ran into a side street, when the forward truck passed safely over, but the rear truck swiv
Exceptions sustained.