Sweetland v. Lynn & Boston Railroad

Knowlton, J. There was evidence of negligence on the part of the defendant’s motorman in running the car. The car was about to pass over a frog at a curve where the defendant’s rules [579] required that cars should not be run faster than four miles an hour, and there was testimony that the car was started up suddenly just before it reached the frog, and was going at the rate of twelve or fifteen miles an hour when it struck the frog and threw the plaintiff off. There was also evidence from which the jury might find that the plaintiff was in the exercise of due care, notwithstanding that he was riding on the front platform of the car, unless he was acting in violation of one of the defendant’s rules in being there. Ordinarily it is a question of fact for a jury whether a passenger, riding on the front platform of an electric car or a horse car, is in the exercise of due care. Lapointe v. Middlesex Railroad, 144 Mass. 18, 21. Cummings v. Worcester, Leicester, & Spencer Street Railway, 166 Mass. 220. Wilde v. Lynn & Boston Railroad, 163 Mass. 533. Beal v. Lowell & Dracut Street Railway, 157 Mass. 444. The remaining question in the case relates to the effect of a sign attached to the hood of the car before and at the time of the accident, which read as follows : “ Notice. All persons are forbidden to be on the front platform of this car, and this Company will not be responsible for their safety. Per order of the Directors.” This purports to be a prohibition of passengers from riding on the front platform, and not a notice stating the terms on which they may ride there. The judge rightly instructed the jury that such a rule would be reasonable, O’Neill v. Lynn & Boston Railroad, 155 Mass. 371, and that if the plaintiff was intentionally violating the rule, he could not recover. Dodge v. Boston Bangor Steamship Co. 148 Mass. 207. Wills v. Lynn & Boston Railroad, 129 Mass. 351. But the jury were permitted to find that, notwithstanding the sign, the rule, if it ever was intended to be a rule, had been allowed by the defendant to become a dead letter, so that in effect the case was as if there never had been such a rule. We have no doubt that "a railroad company, after making a rule in regard to the conduct of passengers, may waive and abandon it, and treat passengers as if it had never existed, and thus lead them to believe that the rule is no longer in force. If a railroad company does this, it cannot set up the rule to defeat the rightful claim of a passenger who has acted in the well warranted belief that the rule is not in [580] force. Chicago, Milwaukee & St. Paul Railway v. Lowell, 151 U. S. 209. Dublin, Wicklow, & Wexford Railway v. Slattery, 3 App. Cas. 1155. Jowes v. Chicago, St. Paul, Minneapolis & Omaha Railway, 43 Minn. 279. New York, Lake Erie & Western Railroad v. Ball, 24 Vroom, 283, 286. If such signs as this are placed over the front platform of cars, and if afterwards the persons in charge of the cars are accustomed to receive passengers upon the cars in such numbers as to crowd the front and rear platforms, as well as the other parts of the cars, and the passengers are permitted to ride freely and without question upon the front platforms, paying for so riding the usual fare, the passengers may well believe, and the jury may well find, that the notice was not intended as a rule to be obeyed, and that the front platforms were intended by the company to be used by passengers. The officers of the company might be supposed to know the habitual methods of their servants in managing their cars. We are of opinion that the instructions were correct, and that the evidence well warranted the submission of the questions to the jury. Exceptions overruled.