Ryan v. Boston Elevated Railway Co. , 209 Mass. 292 ( 1911 )

Knowlton, C. J.

The plaintiff was employed by the defendant as a conductor on its electric railway. Early in the morning of June 25, 1907, before the time for starting on his first trip, he had occasion to see one of his superior officers at the defendant’s car barn near the Chestnut Hill reservoir. For that purpose, he was riding on an electric car on the outbound track toward Chestnut Hill and, as it approached the terminus of the railway near the car barn, he stepped off the car while it was moving slowly, and started, by a well-worn path, which was used by the defendant’s employees, across the inbound track, towards the car barn. While crossing this track he was struck by another of the defendant’s cars and injured.

There was evidence proper for the consideration of the jury tending to show negligence on the part of the defendant’s servants in charge of this car.

The only difficult question in the case, is whether there was evidence that the plaintiff was in the exercise of due care. It is not suggested that there was any lack of care in stepping from the car on which he was riding before it came to a stop. He saw the car that struck him as it was approaching at a speed of about two miles an hour not very far away, and the contention is that he was negligent in not continuing to observe it or in not looking for it a second time before it struck him. On this part of the case the evidence was uncontradicted, that between him and the place where he saw the car approaching, there was what is called a “ dead stop.” It was also an undisputed fact that all passenger cars were accustomed to stop at this place, whether there were passengers to get on or off there or not. The plaintiff testified that when he was receiving instructions as to his duties as conductor, he was told by his instructor that all cars stopped at this place called a “dead stop.” He testified that, in this respect, he knew no difference between different kinds of cars. It appeared that the car that struck him was not a passenger car but was used for collecting receipts or other similar purposes. The plaintiff testified that when he saw it he did not know what bind of a car it was, although he had an idea that it was not a passenger car. If this car had stopped at the “ dead stop ” and started again it would not have reached the place where the plaintiff crossed until a considerable time after he had passed by. There was evidence that from eighty to one hundred conductors and motormen were employed on this part of the railway and, from this and other testimony in the case, the jury might have inferred that even if the plaintiff had known that money cars did not stop at this point the chances were not one in one hundred that an approaching car was one of this bind. The jury might have found from the evidence that the plaintiff thought it certain when he saw the car approaching, that it would stop before reaching the place where he crossed, and that there was no danger in crossing.

We are of opinion that it was a question of fact for the jury whether the plaintiff exercised such care as persons of ordinary prudence would be expected to exercise, in relying upon his supposed knowledge that all cars approaching from the place where he saw the car that afterwards struck him would stop before reaching the place where he crossed.

The question put to the plaintiff as to why he did not look before stepping upon the track was competent and the proposed testimony should have been admitted. McCrohan v. Davison, 187 Mass. 466. Whitman v. Boston Elevated Railway, 181 Mass. 138. Presumably he would have answered stating his supposed knowledge that this car like all other cars would stop before reaching the place where he was about to cross. But the jury might infer this without an express statement from him. A majority of the court are of the opinion that the exceptions should be sustained.

So ordered.