213 Mass. 267 | Mass. | 1913
The question of the plaintiff’s due care was for the jury. It could be found that when he left his seat he had signalled for the car to be stopped at a regular stopping place which it was approaching, and that he had a right to expect, although that had not yet been done, that the speed of the car would be slackened and the car stopped to allow him to alight. In this respect the case resembles in principle Farnon v. Boston & Albany Railroad, 180 Mass. 212. It is not necessarily negligent for a passenger, even upon a steam railroad when the train is coming to a station at which he is to alight, to leave his seat and walk to the door of the car, that he may be ready to go out with the promptness that may be needful. Worthen v. Grand Trunk Railway, 125 Mass. 99. Barden v. Boston, Clinton & Fitchburg Railroad, 121 Mass. 426. A fortiori, this is true of a passenger in a street railway car. Larson v. Boston Elevated Railway, 212 Mass. 262. Nor was it negligent as matter, of law for him to stand at the car door with the firm hold that he testified that he had thereon, in the expectation that the speed would be lessened so as to make the stop which he well might anticipate would be made. No doubt from his knowledge that the car was moving at a very high rate of speed, that its swaying was already unusual, and that it was about to pass over a switch, where there was likely to be a lurch, it reasonably might have been expected that the jury would say that he was negligent; but the issue was still for them and not for the court.
There was evidence also of the defendant’s negligence, even apart from the excessive speed with which it could be found that the car was sent over the switch. It is of course true that this negligence cannot be found from the bare fact that there was a lurch of the car and that injury resulted, even though witnesses might testify that the lurch was an unusual one. But here there was something more. The jury could find that the evidence brought the case within the rule stated in Work v. Boston Elevated Railway, 207 Mass. 447. In that case, Mr. Justice Loring has
The case should have been submitted to the jury. The verdict for the defendant must be set aside; and under the terms of the report judgment must be entered for the plaintiff for $325 and costs.
So ordered.