222 Mass. 275 | Mass. | 1915
These are actions of tort to recover for personal injuries sustained by the plaintiffs while they were riding on a car of the first named defendant.
Near Henley Street the track curves, and while on this curve the plaintiffs were struck by a box car described as “a yellow car,” “one of the big box cars,” “a wider car than the other cars,” “a very wide car.”
1. The left hand running board of an electric car in motion is a place of such obvious danger that under ordinary circumstances a passenger who voluntarily selects such a position instead of the safer one provided by the carrier assumes all the risks connected with such a peril, is guilty of contributing negligence and cannot recover compensation for damages caused thereby. It cannot be said, however, in every case, independent of the special facts involved, that a passenger riding in such an exposed place thereby excuses the carrier from performing his legal duty. The carrier may expressly or impliedly agree to carry him in this part of the conveyance although it is not in common use for such a purpose. If there is such an understanding and sufficient facts appear to warrant this conclusion, it becomes the province of the jury to pass upon the care of the plaintiff and neglect of the defendant, assuming of course there is some evidence to sustain these contentions. Where the conveyance is so crowded that passengers are on both running boards, where for many years the employees as they came from work at this hour had ridden with the consent and knowledge of the defendant, the relation of passenger and carrier being established between them, a passenger so riding does not thereby assume the risk of the carrier’s negligence, nor is he as matter of law by such an act lacking in the exercise of due care.
In Moody v. Springfield Street Railway, 182 Mass. 158, the plaintiff for his own convenience passed along the left hand run
The plaintiff Walsh testified “that he never knew until after ■the accident of a rule of the railroad that passengers should not ride on the left hand running board of cars.” There was no evidence that MacDonald knew of such a rule. And considering the number of people on the running board the jury might have found that the printed notice was so hidden that the plaintiffs did not see it.
The plaintiff in Olund v. Worcester Consolidated Street Railway, 206 Mass. 544, was thrown from a car while on a running board. It was held that the question of his care was for the jury, but there was no evidence of the defendant’s negligence. The same is true of McCumber v. Boston Elevated Railway, 207 Mass. 559. We do not consider the cases of Hillman v. Boston Elevated Railway, 207 Mass. 478, or Bowden v. Boston Elevated Railway, 205 Mass. 504, applicable to the case at bar, where a passenger is rightfully on the car and is being carried as a passenger when injured.
It was within the power of the defendant to prevent the plaintiffs from riding on the running board. In the case at bar this .practice had become so notorious and had continued for so long a time at the hour of the day and at the place in question, considering all the circumstances, that, in the opinion of the majority of the court, the plaintiffs did not assume the risk of the defendant’s negligence while so riding.
The majority of the court think there was sufficient evidence
2. There was evidence of the negligence of the Boston Elevated Railway Company. The motorman must have known that passengers were upon the left hand running board. He knew he was on a curve and a car of unusual width was approaching. Under these circumstances we cannot say, as matter of law, that this defendant was not negligent.
3. The car on the opposite track was a yellow box car. No cars were run on this track except those of the Boston Elevated Railway Company and the Bay State Street Railway Company. There was evidence that none of the elevated cars were box cars, but the cars of the Bay State Street Railway Company were yellow box cars. This was some evidence that the car which struck the plaintiffs was operated by the Bay State Street Railway Company. In view of the fact that the men on the running board at this particular place could be seen by the motorman of the approaching car and that he knew the swing of the car in rounding the curve, we think the negligence of the Bay State Street Railway Company was also a question of fact for the jury.
Exceptions sustained.
The actions were tried together before Lawton, J., who at the close of all the evidence ordered verdicts for the defendants. The plaintiffs alleged exceptions.