182 Mass. 158 | Mass. | 1902
This is an action of tort for personal injuries sustained by the plaintiff while a passenger upon one of the defendant’s cars. At the conclusion of the plaintiff’s evidence the judge directed a verdict for the defendant and the case is here upon exceptions by the plaintiff to this ruling and direction and to the exclusion of certain evidence.
The plaintiff started with some friends from his home in Springfield for the union station. They stopped one of the defendant’s cars going in that direction and the plaintiff’s friends
We think that the rulings were right. Without undertaking to say that in no case a passenger upon an electric street car who was injured by being struck by a passing car while attempting to pass along the running board of a car in motion from one part of the car to another on the side on which cars were liable to pass, would be entitled to recover, we think that in the present case there was nothing to justify the plaintiff as matter of law in so doing, and that he must be held to have as
But manifestly a position on the running board of a car in motion on the side on which other cars are liable to pass is one of danger, and we think that a passenger who boards an electric car in which there are plenty of vacant seats at the place where he boards it, and who chooses for his own accommodation and pleasure to pass along the running board while the car is in motion to another part of the car on the side on which other cars are liable to pass, must be held to have assumed the risk of contact with and injury from cars passing on the neighboring track. See Coleman v. Second Avenue Railroad, 114 N. Y. 609; Woodroffe v. Roxborough, Chestnut Hill & Norristown Railway, 201 Penn. St. 521; Sharkey v. Lake Roland Elevated Railway, 84 Md. 163.
The evidence that was offered, that the plaintiff on previous occasions had been on the running board on the side next to passing cars and had not been injured, was rightly excluded. It had no tendency to show that he did not assume the risk or that he was in the exercise of due care. Whether he was in the exercise of due care depended not on what he had himself done on previous occasions, but on what persons of ordinary prudence would do under the same circumstances. The exclusion of the testimony that was offered as to the width of the cars did the plaintiff no harm. It would have had no tendency to show that he did not assume the risk or that he was in the exercise of due care. The testimony in regard to the rail was also rightly excluded. The obvious purpose of it was to prevent passengers from getting on to or off from the car on that side. The fact that it was on the new cars and not on the old ones was no proof of negligence on the part of the defendant.
Exceptions overruled.