Torrey v. Boston & Albany Railroad

W. Allen, J. The only exception properly taken, and the only one which has been argued, is to the instructions given in reference to the plaintiff’s testimony that he was thrown down by the starting of the train when he was upon the platform of the car. The instruction was, in substance, that if he was unnecessarily or improperly there, knowing that the train was about to start, and was thrown down by the starting of the engine, with no unusual or unnecessary jerk, he could not recover. The instruction was sufficiently favorable to the plaintiff. Hickey v. Boston & Lowell Railroad, 14 Allen, 429. Gavett v. Manchester & Lawrence Railroad, 16 Gray, 501. Todd v. Old Colony & Fall River Railroad, 3 Allen, 18, and 7 Allen, 207. Lucas v. New Bedford & Taunton Railroad, 6 Gray, 64. Gahagan v. Boston & Lowell Railroad, 1 Allen, 187. Mayo v. Boston & Maine Railroad, 104 Mass. 137. Bates v. Old Colony Railroad, 147 Mass. 255. It is argued that the plaintiff left his seat in the car and went upon the platform when the car was at rest; but this is immaterial, if, knowing that the train was about to start, he was voluntarily and of his own choice there when the car was in motion. The plaintiff’s testimony showed that he voluntarily and for his own convenience took an exposed position, not intended for passengers, and he cannot hold the defendant liable for injuries to 414 which his act contributed. The court might have instructed the jury that the reason given by the plaintiff for going to and remaining upon the platform was not sufficient to show the necessity or propriety of the act, and no harm was done to the plaintiff by leaving that question to the jury under the instructions given. Exceptions overruled.