Wilde v. Lynn & Boston Railroad

Lathrop, J. The defendant’s counsel admitted at the argument that thé plaintiff was an adult, and that there was evidence of negligence on the part of the defendant. The only question then is whether the court below ought to have ruled, as matter of law, as requested by the defendant, instead of submitting the question of the plaintiff’s due care to the jury. We are of opinion that this question was properly submitted to the jury. [536] The defendant in effect concedes that the course pursued by the court below would have been correct if the plaintiff had been riding upon a horse car instead of upon an electric car. Meesel v. Lynn & Boston Railroad, 8 Allen, 234. Wilton v. Middlesex Railroad, 107 Mass. 108. Maguire v. Middlesex Railroad, 115 Mass. 239. Fleck v. Union Railway, 134 Mass. 480. Lapointe v. Middlesex Railroad, 144 Mass. 18. Germantown Passenger Railway v. Walling, 97 Penn. St. 55. It is contended, however, that as electric cars run at so much higher a rate of speed than horse cars, and as it is much more dangerous to ride upon the platforms or steps of the latter class than upon those of the former class, a different rule of law should be applied. It is, however, to be remembered that the defendant allowed the car to be very crowded, and that the plaintiff rode where he did without any objection on the part of those having charge of the car. Being received as a passenger riding as he did, we cannot say, as matter of law, that, because he did not crowd upon the platform, he was precluded from recovering. Pray v. Omaha Street Railway, 44 Neb. 167. Exceptions overruled.