Savageau v. Boston & Maine Railroad, 210 Mass. 164

210 Mass. 164 | Mass. | 1911

Braley, J,

The only evidence as to the second count was a statement of a witness for the plaintiff, that the train came in fast, but, nothing more being shown, no inference could be drawn that the engineer was negligently running at such an excessive or unusual speed as to endanger the plaintiff, who among other passengers was waiting on the station platform for its arrival. Gerry v. New York, New Haven, Hartford Railroad, 194 Mass. 35, 37.

But if the ruling, that the plaintiff had failed to prove any liability of the defendant under this count, was right, he complains that under the first count, upon which the case went to the jury, his requests for rulings should have been given, and that the instructions to which he excepted were inaccurate and misleading.

It is undoubtedly true, that the defendant was bound to provide a suitable platform in area and construction, and sufficiently lighted for the accommodation and safety of passengers while waiting for trains upon which they intended to take passage. Young v. New York, New Haven, & Hartford Railroad, 171 Mass. 33. In the performance of this duty, as often pointed out, the degree of care and diligence to be exercised must be commensurate with the nature of the carrier’s undertaking. The plaintiff’s fourth request having omitted this qualification was inappropriate, and the rule was correctly stated in the charge. Marshall v. Boston & Worcester Street Railway, 195 Mass. 284, 286, 287. Gardner v. Boston Elevated Railway, 204 Mass. 213, 216, 217.

It also was a question for the jury whether the platform as constructed was reasonably safe for the use of passengers. The fact that it was built level with the track so that an ordinary passenger car with the engine would project over the platform for a distance equal to the space between the inner rail and outer side of the car, while important, was not conclusive. It was for the jury to determine in view of the amount and frequency of travel, if the projection of the engine and cars was unusual, unnecessary and unreasonable. The eighth, tenth, eleventh and twelfth requests accordingly could not properly have been given in the language in which they were presented, but the questions raised were fully and accurately stated in unexceptionable instructions.

It is doubtful under the colloquy between the counsel for the plaintiff and the presiding judge before the jury retired, if exceptions to the instructions as to the degree of care required of the plaintiff are open. If treated as before us, the plaintiff excepted to the instruction, “ If you should be satisfied that the account he gives you, and his witnesses give you, is exactly correct, it by no means follows, that he is in the exercise of due care. It is for you to say, assuming that you believe that he has given you an account that is exactly correct or substantially correct. It by no means follows that he is entitled to say that he was in the exercise of due care.” The instruction, however, is to be read with the context, and what was said to the jury after counsel had stated that he excepted. It then is manifest that the jury were correctly instructed, that the standard of care required of the plaintiff was that of the reasonably careful and prudent man when called upon to act under similar conditions, and, the question having been one for their decision, they could review his entire conduct from the time he passed to the platform and until injured, and were not restricted to the field of inquiry as defined in the fourteenth request. Hennessey v. Taylor, 189 Mass. 583, 585.

The plaintiff further excepted “ to the repetition of the facts of the defendant’s contention, under the charge of due care, and also the charge on negligence.” It is urged that the course pursued was objectionable and prejudiced him with the jury. But it is for the judge to determine if the nature of the case and the administration of justice calls for a repetition of legal principles which already have heen stated, and his decision as well as the language employed to express his definitions, even if emphasized, are unreviewable if the propositions of law involved are correctly given. Howes v. Grush, 131 Mass. 207, 211. Whitney v. Wellesley & Boston Street Railway, 197 Mass. 495, 502.

Exceptions overruled.