Mabry v. Boston Elevated Railway Co.

| Mass. | May 21, 1913

De Courcy, J.

As both parties agree, the issue raised by the pleadings and the evidence in these cases was narrow and well defined. The testimony offered for Martha Mabry, hereinafter called the plaintiff, was in substance that the car had come to a stop and six passengers had alighted, and that before the plaintiff, in the act of alighting, had an opportunity to step from the running board the conductor gave the two-bell signal and the car started with a sudden jerk, throwing her to the station platform. On the defendant’s evidence the injury was caused by the plaintiff’s attempt to leave the moving car before it had come to a full stop. If the jury believed the plaintiff’s story, they were well warranted in finding a verdict in her favor. If they accepted the defendant’s version of the facts, it was their duty to return a verdict for the defendant; and they should have been so instructed.

On the declarations and the evidence there was no middle ground. The plaintiff’s contention was, not that the car started violently, but that it started prematurely, from a full stop. For that reason the references in the charge to liability for jolts and jerks in the movement of a car were uncalled for; and the discussion as to liability when an alighting passenger is injured by reason of a lurch of the car as it is coming to a stop was foreign to the evidence and the issue, and liable to mislead the jury. The defendant’s counsel called these matters to the attention of the judge at the close of the charge and duly excepted thereto.

The jury were rightly told that the issue of the plaintiff’s due care was one of fact for them. For even if the car was slowly moving, coming to a full stop as the defendant contended, it could not be ruled as matter of law that the plaintiff was careless in attempting to alight. Whether an ordinarily prudent person would do so under the circumstances was a question for the jury. Marshall v. Boston Elevated Railway, 203 Mass. 40" court="Mass." date_filed="1909-06-24" href="https://app.midpage.ai/document/marshall-v-boston-elevated-railway-co-6430762?utm_source=webapp" opinion_id="6430762">203 Mass. 40. But nowhere in the charge were the jury told, as they should have been, that if the plaintiff left the car before it stopped there was no evidence, on the facts disclosed, of negligence on the part of the defendant and consequently no liability on its part. On the contrary they were instructed that “if the accident occurred through the plaintiff getting off the car before it stopped, and it was in consequence of that, it is for you to say whether the plaintiff was in the exercise of due care, and it is for you to say as to whether the defendant was negligent.” And substantially the same statement was made elsewhere in the charge. It was not the equivalent of the law to which the defendant was entitled to say that the plaintiff would not be entitled to recover if she "was hurt because the car was moving and because she did not obey the instruction” of the conductor to “wait until the car stops.” From this the jury would be likely to infer that notwithstanding the car was in motion they might find the defendant guilty of negligence if the conductor failed to warn the plaintiff not to get off until the car should stop. On the defendant’s version, upon which the judge was then charging, there was no invitation to alight at the time of the accident and no negligence in bringing the car to a stop, and, as there was no duty to warn or restrain the plaintiff, the failure to warn would not constitute negligence.

Undoubtedly there are cases arising from an injury to a passenger while alighting from a slowly moving car where there is evidence for the jury both as to the passenger’s due care and the carrier’s negligence. But this was not one of those cases. If the jury believed that the plaintiff was injured by leaving the car before it stopped, there was nothing in the evidence before them that constituted negligence on the part of the defendant. The failure of the judge to charge the jury that such was the law, and the portions of the charge that were inconsistent therewith, were specifically called to his attention and exceptions were duly taken by the defendant. Although the charge in some respects is above criticism, yet in view of the portions which have been referred to we are of opinion that considered as a whole it discloses prejudicial error, entitling the defendant to a new trial.

In consequence of the result to which we have come, we do not deem it necessary to consider the portion of the charge that deals with the witness Murphy, to which the defendant excepted on the ground that it was in violation of R. L. c. 173, § 80.

Exceptions sustained.