Thompson v. Gardner, Westminster & Fitchburg Street Railway Co. , 193 Mass. 133 ( 1906 )

Hammond, J.

These two actions brought to recover damages by reason of injuries received by the plaintiff in the first action were tried, together. We shall speak only of the first because the second stands or falls with it.

The defendant’s track ran by the side of the road; and between the track and the sidewalk there was a gutter in the form of a ditch about one foot wide and about one foot deep, the nearest line of the ditch being two and one half feet from the nearest rail of the track. The car stopped for passengers to alight. It was about eight o’clock in the evening of the sixteenth day of August. As to the circumstances the plaintiff testified that when the car stopped she stood up to get off on the “usual side,’’.“the left hand side”; that “there were people standing between the seats and between her and the left hand side (which was the street side) ; that she was standing facing the front of the car with her right hand toward the sidewalk; that she saw the conductor go around to the sidewalk side of the car; that he passed right by them [herself and a little girl who was with her] and did not offer to help her off; that she heard one bell rung, and . . . [the] . . . little girl who was with her hopped off, and then another bell rung, and she stepped on to the running board, and then stepped off (on sidewalk side) from the car, as she thought the car was going to start up; that she stepped off with the left foot, and stepped right into the ditch; that the bell did not ring but once, and that after the little girl stepped off it rang again ; that when she got on to the running board she stood facing the sidewalk and looked out toward the sidewalk and saw what she thought was level ground; that there were no lights there; . . . that when she stepped into the ditch she was hurt.”

The car did not start until after she had alighted. The place where the car stopped was a part of the highway over which the defendant had no control. The case is thus distinguishable from cases like Joslyn v. Milford, Holliston & Framingham Street Railway, 184 Mass. 65. “ The street is in no sense a passenger station, for the safety of which a street railway company is responsible.” Barker, J. in Creamer v. West End Street Railway, 156 Mass. 320, 321. The plaintiff however contends that it was the duty of the conductor to caution her against stepping into the gutter, and that his failure to do so was negligence. But this contention is untenable. Gutters like the one described are not uncommon features of streets in our country towns. They are generally between that part of the highway which is wrought for public travel and the sidewalk. The plaintiff knew that she was alighting from the car upon the “ sidewalk side,” and the conductor may well have assumed that she was familiar with the existence of gutters and would govern herself accordingly. His failure to warn her was not negligence. See Bigelow v. West End Street Railway, 161 Mass. 393.

It is unnecessary to consider what would have been the duty of the conductor had there been some unusual cavity into which she was likely to fall.

Exceptions in each case overruled.