Sonier v. Boston & Albany Railroad

C. Allen, J. It must now be assumed, as found by the jury, that the defendant negligently and improperly failed to give the plaintiff warning of the approaching train; and that this negligence caused the accident. The question remains, however, whether the plaintiff should be precluded from recovering by reason of a failure to show due care on his own part. By the arrangement of the defendant’s road, it was necessary for the plaintiff to cross the track in order to reach the train which he was about to take, and for which the defendant had sold him a [14] ticket. Under these circumstances, he had a right to rely to some extent upon the giving of proper and usual signals of danger, or other suitable warning, in case of the approach of a train; and the mere fact that he did not look to see if a train was approaching is not, under the circumstances, conclusive of a want of due care on his part. Gaynor v. Old Colony & Newport Railway, 100 Mass. 208, 213. Chaffee v. Boston & Lowell Railroad, 104 Mass. 108. Mayo v. Boston & Maine Railroad, 104 Mass. 137, 141. There was testimony to the effect that the plaintiff was standing still upon the platform at the moment of the accident. We cannot say that the step was not broken before this time, or that it was not projecting beyond the side of the car, or that the plaintiff was not hit in consequence of such projection. It is not made certain by the testimony that he was on the point of stepping down from the platform upon the track. Certainly he was where he had a right to be, unless, at that particular moment, he was guilty of a want of due care in failing to look out for the train; and, inasmuch as the defendant negligently omitted to give him such due and proper warning as he had a right to expect, the question of his due care, under these circumstances, was properly submitted to the jury. Exceptions overruled.