Hickey v. Boston & Lowell Railroad

Wells, J. It is well settled that a party cannot recover for injuries caused by negligence, if he himself failed to exercise proper care, and his own negligence contributed to the result. It is also well settled that the plaintiff must show affirmatively that he was in the exercise of due care upon his own part. Lane v. Crombie, 12 Pick. 177. Carsley v. White, 21 Pick. 254. Callahan v. Bean, 9 Allen, 401. If the injury happen while the party is occupying a place provided for the accommodation of 432 passengers, nothing further is ordinarily necessary to show due care. But when the plaintiff’s own evidence shows that he had left the place assigned for passengers, and was occupying an exposed position, and that the injury was due in part to the fact of such position, he must necessarily fail, unless he can also make it appear, upon some ground of necessity or propriety, that his being in that position was consistent with the exercise of proper caution and care on his part. The front platform of a steam railway car, coming into a station, detached from the train, where the approach is complicated by side tracks, turnouts and switches, and rendered more liable to accident by the operation of breaking up and transposing the train while in motion, cann3t be otherwise, comparatively, than a position of exposure. The plaintiff proposed to show that “ the platform was not, as a matter of fact, a dangerous place in which to ride into the depot, under all the existing circumstances of the case.” But to do that she must exclude from “ the existing circumstances of the case ” the fact of the accident which threw the forward car across the track, as well as the liability to similar accidents which always exists, and which cannot be foreseen nor guarded against by the passenger. The chances of injury are comparatively few, even in the most exposed positions. But a passenger is not justified in incurring risks unnecessarily, however rare the chances may be that he will suffer by it. Todd v. Old Colony Railroad, 3 Allen, 18; S. C. 7 Allen, 207. The apparent danger in the case just cited was certainly less than in the one at bar. If, then, the position upon the platform was taken voluntarily, and without reasonable cause of necessity or propriety, the plaintiff fails to show that her intestate was in the exercise of due care and caution. An eager desire to be first in, to arrive at the front rather than at the rear of the train, is certainly not such reasonable cause. Ordinarily no accident occurs to those who rush out of the train, or rush into the iars at .stations, before the train fairly comes to a stop, or after it is in motion again; but it cannot now be questioned that those who do so take upon themselves all the risks which attend such a practice. 433 Gavett v. Manchester & Lawrence Railroad, 16 Gray, . The excuse for such an attempt was stronger in the case of Lucas v. New Bedford & Taunton Railroad, 6 Gray, 64, than it was in the present case. That the intestate and others were accustomed to take this mode of entering the station did not tend to show that, it was safe or prudent for him to do so. Nor would the implied assent of the officers of the corporation,'’arising from knowledge and acquiescence, nor even the express consent and permission of the conductor of the train, change the relations between the parties, and their several obligations. It is not enough for the plaintiff to show that Hickey was rightfully upon the platform. Because he might rightfully occupy whatever place the conductor should permit, it does not follow that he would do so at the risk exclusively of the corporation. If sufficient and suitable provision be made within the cars for all the passengers, the managers of the train are not under obligation to restrict them to their proper places, nor to prevent them from acts of imprudence. If they voluntarily take exposed positions, with no occasion therefor, nor inducement thereto, caused by the managers of the road, except a bare license by non-interference, or express permission of the conductor, they take the special risks of that position upon themselves. Sweeny v. Old Colony & Newport Railroad, 10 Allen, 368. The court are of opinion, therefore, that the plaintiff’s testimony failed to furnish any evidence of proper care on the part of her intestate ; and that the rulings at the trial were right. A nonsuit must accordingly be entered.