Bush v. Boston Elevated Railway Co. , 232 Mass. 593 ( 1919 )

Carroll, J.

The plaintiff was injured while alighting from a car on Washington Street, Boston, near the corner of Harvard Street. The car was north bound and had passed Bennett Street where there was a white post marking a régular stopping place. The next white post was at Kneeland Street, about four hundred feet away. The plaintiff was employed near the place of- the accident. He testified that the “car was blocked and the car stopped opposite the New Marlborough Hotel;... a couple of people went out and the car was stopped, and I says, I will get out here now.” He contended that when he was alighting, the car started and he was injured. The jury found for the plaintiff.

The evidence was conflicting on many material points, but the jury, could have found that, while the car was stopped, two passengers alighted from the rear platform and that the plaintiff followed them; while stepping from the car, it started, and he was thrown to the ground. There was no evidence that the starting signal by bell was given.

Assuming that the car was not moving when the plaintiff attempted to alight, and that the conductor was on the rear platform, there is nothing in the evidence to show that the conductor was negligent. He did not give a signal to the motorman to start the car; and, while he could have seen the passengers as they attempted to alight, he had no reason to suppose that the car would start; under such circumstances he cannot be considered negligent because he failed to warn the passenger. If he was on the front platform at th¿ time, as claimed by some of the witnesses, there is nothing to show that he knew the plaintiff was going to leave the car or that in the exercise of reasonable care he could have prevented injury to the plaintiff.

Neither was there any evidence of the motorman’s negligence. He was not informed, and had no knowledge, that the plaintiff would attempt to leave the car at this place, which was not a regular stopping place and where it does not appear that cars ever stopped for the purpose of allowing passengers to leave the car. He was not negligent in starting the car which had been temporarily stopped because of street traffic, without knowledge that the plaintiff was in the act of alighting and at a place where it would not be expected] he would alight. The fact that no starting bell was given and that .the motorman stated he always “waited for his bells before starting his car,” is not enough under the facts shown to indicate neglect on his part. Coneton v. Old Colony Street Railway, 212 Mass. 28.

The fact that two passengers preceded the plaintiff in alighting from the car when it stopped, is not itself sufficient to show that the plaintiff was invited to leave the car at this place.

Defendant’s exceptions sustained.

Judgment for the defendant under St. 1909, c. 286.