Perkins v. Bay State Street Railway Co., 223 Mass. 235

223 Mass. 235 | Mass. | 1916

Braley, J.

It has been repeatedly stated that the duty of a common carrier of passengers whether by land or water is to furnish suitable vehicles or vessels for the safe carriage of travellers with such reasonable accommodations as usually are provided on similar conveyances. Marshall v. Boston & Worcester Street Railway, 195 Mass. 284, 286, 287, and cases cited. 4 R. C. L. Carriers, §§ 524, 586. And where, as in the case at bar, a passenger in the exercise of due care is injured through the alleged negligence of the carrier in not providing safe and sufficient means of transportation, the question is whether that degree of care which prudent competent persons would have used under similar conditions to avoid the occurrence of such accidents has been exercised. Le-Barron v. East Boston Ferry Co. 11 Allen, 312, 315.

It appears from the record that when leaving the car, which was of the semi-convertible type, the plaintiff caught the heel of her boot in the cleats on guides at the iron threshold of the door causing her to be thrown into the vestibule and severely injured. The car was new and no contention is made that it was defective or out of repair, but the plaintiff contends that the construction and arrangement of the threshold were faulty and unsafe. It is to be observed that no part of the car gave way. The mere happening of the accident therefore affords no presumption of negligence, and the burden was on the plaintiff to introduce some affirmative evidence from which the jury could find that the defendant had failed to use due care in the equipment of its railway. Carroll v. Boston Elevated Railway, 200 Mass. 527, 536. Carney v. Boston Elevated Railway, 212 Mass. 179.

The material facts not in controversy are, that cars of this type having iron thresholds consisting of one casting with a series or row of cleats or guides a quarter of an inch in height above the surface through which the doors ran closing in the centre, had been in common use for a number of years on other street railway systems. And in the absence of proof of information or of reasonable knowledge from experience that injury to passengers was likely to happen from their use, there is no evidence from which the jury could say the defendant should have foreseen, that, with everything plainly visible, passengers using the thresholds ordinarily might be expected to stumble and fall from contact with the cleats or would be caught “between the cleats and the floor of the car.” If the construction was not mechanically improper or defective, and no practicable method having been suggested of guarding against the use of such thresholds in the usual way except to discontinue the use of that kind of car, there was no positive evidence from which negligence could be found. The plaintiff’s injury resulted from an accident under circumstances where the defendant had taken every reasonable precaution. Adduci v. Boston Elevated Railway, 215 Mass. 336, 337, ad finem.

The jury should have been instructed that the action could not be maintained, and in accordance with the terms of the report judgment is to be entered for the defendant.

So ordered.