154 Mass. 60 | Mass. | 1891
This is an action to recover damages for personal injuries alleged to have been caused by a defect in a highway. The plaintiff was a conductor of a street car, and at the time of the accident was standing on the running-board of an open car, collecting fares, when he was knocked off and injured by being carried against a post planted in the highway within two inches of the edge of the running-board. The post was part of a barrier which had been put up as a guard where the street had caved in because of an excavation for a new building at the corner of Court Street and Washington Street.
On the question whether the barrier was a defect, the jury were instructed, in substance, that if the barrier as it stood was reasonably necessary to protect the public at the time of the accident, and if its position was indicated by sufficient lights, it
It is objected, however, that the instructions given allowed the jury to find that there had been such a change as to make it proper to remove the barrier, whereas in fact there was no such evidence. The question turns on the meaning of a witness, the inspector of buildings, in testifying that on Saturday morning the danger from the caving in had ceased, — the accident Having happened Saturday evening. It was left to the jury to say whether he meant that the danger to the public had ceased because the posts had been put in as a protection against it, or because the danger of a further caving in of the street was over, so that the barrier was no longer necessary. Whatever we might have thought if all the language used by this witness had occurred in a written deposition, we cannot say that his words may not have admitted of two interpretations by those who heard them, and therefore we find no error here.
An exception is taken to leaving the question of the plaintiff’s negligence to the jury. So far as the ruling requested rested upon the plaintiff’s knowledge, it is to be observed that, while he admitted that he had a general idea that there were some
So far as the request for a ruling that the plaintiff was negligent was put upon the ground that he was standing on the running-board and allowed his person to project beyond the outer edge of the board, there can be no doubt, we think, that the question would be left to the jury in an action against the railroad company. Meesel v. Lynn & Boston Railroad, 8 Allen, 234. Fleck v. Union Railway, 134 Mass. 480. City Railway v. Lee, 21 Vroom, 435. Ceitz v. Milwaukee City Railway, 72 Wis. 307. Dahlberg v. Minneapolis Street Railway, 32 Minn. 404. Dickinson v. Port Huron & Northwestern Railway, 53 Mich. 43. Germantown Passenger Railway v. Walling, 97 Penn. St. 55. West Philadelphia Passenger Railway v. Gallagher, 108 Penn. St. 524, 528. It is true that in such an action the plaintiff has the advantage that the defendant invited the conduct which it now alleges to have been negligent, but the reasoning of the cases is not wholly dependent upon this fact, and the same conclusion has been reached in actions against third persons in cases of collision. Spofford v. Harlow, 3 Allen, 176. Connolly v. Knickerbocker Ice Co. 114 N. Y. 104. There are many things to be considered in deciding upon the character of the plaintiff’s conduct, and we cannot say that it seems to us so plainly negligent that the question should have been taken from the jury.
The only other point which is argued for the defendant is, that the judge sent the case to the jury in such a way that they may have found for the plaintiff on the ground that, although