Magee v. West End Street Railway Co.

C. Allen, J. There is nothing in the circumstances disclosed which would have justified the court in withdrawing the case from the jury. It must of course now be assumed, since the verdict, that the defendant was negligent. There was evidence tending to show that the plaintiff was unable fully to dress himself before starting for the fire; and that he was not riding permanently with his leg between the rounds of the ladder, but only for the purpose of holding on while adjusting his belt. He could not be expected to use the same degree of care as might properly be required of one who had no such duty to perform as he had. Considering his duty and the exigency of the occasion, we cannot say that he was not in the exercise of due care. Snow v. Mousatonic Railroad, 8 Allen, 441, 448-450. Lawless v. Connecticut River Railroad, 136 Mass. 1, 5. Exceptions overruled.