Barry v. Boston & Albany Railroad

Hammond, J. At the close of the evidence, the defendant requested the court to give certain rulings, eight in number. The court gave the first three and the fifth. The fourth was rightly refused in the form presented. There were other circumstances bearing upon the question whether the plaintiff supposed the train had reached the place for her to alight, and the court was not bound to rule upon the effect of the two facts named in the request considered as detached from all the others. [116] The instruction that “ the act of the brakeman in calling the station and the actual stopping of the train are to be considered by you in connection with the care which it was necessary for her, the plaintiff, to use in the exercise of her senses to determine whether the defendant negligently led the plaintiff to suppose the train had reached the place for her to alight,” sufficiently covered the subject matter of the request. The subject matter of the sixth was fairly covered by the instruction that “ She was bound to use due care to ascertain' whether the train reached the place designed for passengers to alight, and had no right to assume it simply because the brakeman had announced the station, and the train had stopped. I think I substantially covered that before. She must use her senses. Simply because somebody said, 1 South Framingham,’ is not enough. She must use her senses about it.” The seventh was rightly refused. The declaration did not require the plaintiff to prove that the train actually had come to a stop at a place designed for passengers. It alleges that “ at or near the station at South Framingham the defendant’s employee called out in the car in which the plaintiff was seated, ‘ South Framingham,’ and thereupon the said car stopped and came to a standstill, and that thereafter the plaintiff, relying upon the said announcement and believing therefrom and from the stopping of said car that the passenger station had been reached, attempted to alight from said car; that as she was on the point of stepping from said car the train suddenly started, and she was thrown with great force to the ground.” It nowhere states where the train stopped, and proof of a stopping elsewhere than at the place designed for passengers to alight was no variance. The rest of the request was given, subject to the modification contained in the latter part of the third instruction, which was given. This was all the plaintiff was entitled to. The refusal to give the eighth presents a question of more difficulty. The evidence produced by the defendant seems to have a very strong tendency to show that, at the time the plaintiff attempted to get off, the train had not come to a stop at the place designed for passengers to alight. On the other hand, the plaintiff testified that when she was stepping out she saw [117] the platform of the depot, and tried to step upon it, and that she “ was stepping on the fourth step and just stepping on the platform.” It is argued for the defendant that in other parts of her testimony it appears that she did not know what she was going to step on when she left the car, and that in saying she saw the platform she was mistaken; and there is much in her testimony to support this contention. But the effect of the whole evidence was for the jury, and, there being a conflict, we cannot say, as matter of law, that they were not justified in coming to a conclusion the other way. Exceptions overruled.