196 Mass. 587 | Mass. | 1907
The plaintiff fell while in the act of alighting from one of the defendant’s cars and received the injuries complained of. A step had been removed from the car, which was a work car and not used in the transportation of passengers, and had not been replaced. It was this which caused the accident. The plaintiff was the assistant superintendent and there was evidence, we think, tending to show that he was engaged at the time of the accident in the performance of the duties imposed upon him as such assistant superintendent, and was properly using the car for that purpose. It could not be ruled, we think, as matter of law that the plaintiff assumed the risk and was not in the exercise of due care, or that there was no evidence of negligence on the part of the defendant. The first instruction requested by the defendant, that'the jury should be directed to return a verdict for the defendant, was therefore properly refused. There was evidence tending to show that the plaintiff had called the attention of the superintendent to the absence of the step, and that the superintendent had promised to have it repaired immediately. The plaintiff did not have charge of the repair of the step, and it was no part of his duty to see that it was repaired. And how far he was justified in relying on the promise of the superintendent to have the step repaired, and how far, taking all the circumstances into account, the risk was to be regarded as an obvious one, and as having been assumed by him, were questions especially within the province of the jury, as was also the question whether, in the exercise of due care, he should have looked, if he did not, before attempting to alight, and whether, if he had looked, he could have failed to see that there was no step there. These and other matters were submitted by the presiding justice to the jury under instructions of which we think that the defendant cannot justly complain. Amongst other instructions which he gave them, the presiding justice instructed the jury as follows: “If he [the plaintiff] knew that the steps were gone from that car, but forgot it at the time, then he was not in the exercise of due care and he could not recover. If on the other hand, he supposed, and had reason to suppose that the steps were there, because of these representations that were made [meaning the alleged promise by the superintendent to have them replaced] and of his reliance upon them, and if he,
It could not be ruled as matter of law, as the defendant in effect asked the court to rule, that the plaintiff was negligent not only in attempting to get off the car while in motion but also in attempting to alight while the car was in motion at a place where the road was banked with snow. It was not, as matter of law, necessarily negligent for him to attempt to alight while the car was in motion. Corlin v. West End Street Railway, 154 Mass. 197. Grordon v. West End Street Railway, 175 Mass. 181. Block v. Worcester, 186 Mass. 526. Whether he was negligent in attempting to alight as he did, at the place where he did, was a question for the jury.
There was evidence of negligence on the part of the defendant. The jury were warranted in finding that it was expected by the defendant that the car would be used by such of its employees, including the plaintiff, as had occasion in the performance of their duty to use it, and that it was negligently suffered by the defendant to be in the condition in which it was at the time of the accident.
We see no error in the manner in which the presiding justice dealt with the case.
Exceptions overruled.
