Briggs v. Union Street Railway Co.

Knowlton, J. The first question in this case is, whether there was any evidence that at the time of the accident the plaintiff was in the exercise of due care. The plaintiff’s conduct in its relation to the accident was particularly described in his testimony, and in the absence of any disclosure which, according to generally recognized standards of judgment, plainly showed it to have been negligent, it was for the jury, and not for the judge, to say whether it was reasonably careful. Whether a person riding upon the front or rear platform of a horse car, or [75] getting on or off at either platform while the car is in motion, is in the exercise of due care, has repeatedly been decided to be a question of fact for a jury. Meesel v. Lynn Boston Railroad, 8 Allen, 234. Maguire v. Middlesex Railroad, 115 Mass. 239. Murphy v. Union Railway, 118 Mass. 228. McDonough v. Metropolitan Railroad, 137 Mass. 210. In this case the plaintiff testified that he was sixty-eight years old, and weighed from one hundred and ninety to two hundred pounds; that he signalled to the driver that he wanted to get on ; ■that the car “ slowed up,” and while “ it was going about as fast as some horses will walk, in the neighborhood of four miles an hour,” he got hold of the forward rail of the rear platform with his right hand, and of the rear rail on the dasher with his left hand, and made a spring to get on, when his foot struck on the edge of the step and slipped off; that the car had started up and was going at increased speed; and that he made two other attempts to get on, then let go the forward rail with his right hand, and held to the dasher rail with both hands, trying to keep up with the car, until he was thrown down and injured. We cannot hold, as matter of law, that the plaintiff was negligent in trying to get upon the car' as he did. It was for the jury to test his conduct by their knowledge and experience, and by their judgment of what men of common prudence would be expected to do under like circumstances. The court was also requested to instruct the jury, that, if the plaintiff believed the driver hajl not seen his signal, his attempt to get on the car was negligence. We are of opinion that this instruction was rightly refused. The court cannot say, as matter of law, that an attempt to step upon a horse car which has just “ slowed up,” and is moving no faster than this is said to have been, is negligence, even if no signal is known to have been given to the driver. Both’questions raised by these requests are covered by the decision in McDonough v. Metropolitan Railroad, ubi supra, a case which was fully considered, and the facts of which were very similar to those of the case at bar. The only remaining exception relates to the conduct of the plaintiff in seizing the rail of the rear dasher, and trying to pull himself up to the car, after having lost his hold upon the rail attached to the body of the car. But this was apparently a [76] sudden and perhaps almost involuntary effort of the plaintiff to protect himself, after his foot had slipped off the step and he was in immediate danger of falling. He testified that it all happened very quickly, and that the car stopped within fifteen or twenty feet from the place where he first grasped the rail. One should not be held too strictly for a hasty attempt to avert a suddenly impending danger, even though his effort is ill-judged. This part of the plaintiff’s conduct was rightly submitted to the jury. Exceptions overruled.