Bromley v. New York, New Haven, & Hartford Railroad Co.

Loring, J. The plaintiff was a passenger on the defendant’s railroad. He left the passenger compartment of the combination car and went into the baggage compartment, for the purpose of talking with the baggage master about fowl and to see a box of fowl which was in that part of the car. When the plaintiff left the passenger compartment about half of the seats in it were empty. He was injured by the train coming into collision with a part of a freight train which had been left on the same track. The train was going about fifteen miles an hour at the time of the collision, and the plaintiff then was standing with bis hand on the side of the car, talking with the baggage master. He was thrown over a low box of fowl that was near him, and struck his head and side on the floor. u His shin struck the box before he hád fallen.” [455] This case comes within the class of cases beginning with Hickey v. Boston & Lowell Railroad, 14 Allen, 429, and ending with Fletcher v. Boston & Maine Railroad, 187 Mass. 463, in which it is held-that one who has left the place assigned for passengers and is occupying an exposed position cannot recover when the injury is due in part to the fact of such position. The plaintiff’s first contention is that his position in the baggage car did not contribute to the injury he received. The statement of the injury in our opinion shows that it did. His next contention is that the defendant acquiesced in his being where he was because the conductor punched his ticket while he was in the baggage car. That contention is disposed of in Hickey v. Boston & Lowell Railroad, 14 Allen, 429. The same case establishes the point that the presiding judge here was right in excluding “ evidence to show that it was customary for passengers between South Framingham and Marlboro to ride in the baggage compartment of the car, and to have their tickets punched and taken by the conductor when there.” Wilde v. Lynn & Boston Railroad, 163 Mass. 533, and Sweetland v. Lynn & Boston Railroad, 177 Mass. 574, relied on by the plaintiff, were cases of passengers riding on platforms of electric cars when all the seats were taken. They stand on a different footing. We find nothing in the other Massachusetts cases cited by him which supports his contention. Exceptions overruled.