Dawson v. Boston & Maine Railroad , 156 Mass. 127 ( 1892 )

Allen, J.

The defendant in its answer denied each and every allegation contained in the plaintiff’s declaration, and thus required the plaintiff to prove his whole case. One averment was that .he was in the exercise of due care. There were five passenger cars standing upon a side track, and the incoming train passed by the station on the main track, and, after reaching the switch, was backed down upon the side track and coupled to the stationary cars. After the incoming train had "passed the station, the plaintiff tried to get into one of the stationary cars, and received his injury.

The evidence objected to was competent. If the doors of the stationary cars were locked till just before starting, and if there were many persons at the station waiting to "take that train, and if the plaintiff knew these facts, the jury might think they had a bearing on the question of due care in not getting upon the train sooner, or in the haste which he showed in trying to get on; and if under these circumstances the train started very soon, that would bear upon the question of the defendant’s due care. The locked doors may have prevented the plaintiff from getting on board the train earlier. The crowd of passengers may have led him to hurry when he did try to get on.

Although a defendant at the trial may orally admit something which is put in issue by his answer, the court in its discretion may receive evidence, the same as if the admission had not been made. Dorr v. Tremont National Bank, 128 Mass. 349, 360, and cases cited.

The defendant’s first request for instructions was rightly refused. It is not a rule of law that a passenger who is to take a train at a station, under circumstances like those disclosed, is guilty of contributory negligence if, after a signal has been given to start the train, he attempts to get on, the train being at rest when he begins his attempt. He might not know the signal had been given. If he did know it, there might be reason to think he could get on before the train should actually start.

The defendant’s second request was sufficiently covered by the instruction to the jury that under the circumstances stated, the plaintiff’s theory of the case would be sustained.

Exceptions overruled.