Nichols v. Middlesex Railroad

Mobton, J. We are of opinion that the defendants’ exceptions must be sustained. The negligence of the defendants’ servants, of which the plaintiff complained, consisted solely in their starting the car suddenly while she was in the act of getting off, by which she was thrown down and injured. The bill of exceptions states that there was evidence tending to show that the plaintiff pulled the bell and immediately proceeded to get off the ear before it had stopped, and that neither the driver nor the con [465] ductor knew that she was getting off the car till after she fell In view of this evidence the defendants asked the court to instruct the jury as follows: “ That if the plaintiff took upon herself the charge of the car, and, without notice to any one, the conductor being then on the car, she rang the bell, and, without the knowledge of driver or conductor, proceeded to get off, she could not recover.” “ That it was the duty of the plaintiff to have notified some one in charge of the car, if she desired to get off, and if she got off without such notice, or without the knowledge of those in charge of the car, she did so at her peril, and cannot recover.” We are of opinion that the substance of these instructions should have been given. If the plaintiff attempted to get off the car without any notice to the conductor or driver, and was injured by the sudden starting of the car, such injury cannot be attributed to the negligence of the defendants. The alleged negligence consisted in improperly starting the car when a passenger was getting off; but if the conductor and driver neither knew, nor were notified, nor had the means of knowing, that a passenger desired to get off, or was in the act of getting off, there was no negligence in starting the horses at a faster gait. Upon the evidence reported in the bill of exceptions, it would be competent for the jury to find that the plaintiff undertook to get off without any notice to the defendants’ servants in charge of the car, and without their knowing, or having the means of knowing, that she was getting off; and we think the defendants had the right to a specific instruction that if they so found the plaintiff could not recover. This is substantially the instruction requested by the defendants, and we think the jury may have been misled by the refusal to give this instruction, and that the general instructions would not correct the effect of this refusal. Simmons v. New Bedford,. Vineyard f Nantucket Steamboat Co. 100 Mass. 34. Exceptions sustained.