Pomeroy v. Boston & Northern Street Railway Co.

Braley, J. The defendant, by accepting the plaintiff as a passenger, undertook to provide him with transportation to bis plac'e of destination, and in the performance of this duty it was ' required to exercise the highest degree of care commensurate with the nature of this undertaking. Warren v. Fitchburg Rail [511] road, 8 Allen, 227, 233. Galligan v. Old Colony Street Railway, 182 Mass. 211, 214, 215. In the construction and equipment of its road the trolley poles were located at certain distances along the railway, and the alleged defect by which the plaintiff was injured consisted of a pole so placed on the circumference of a curve that its inclination towards the track jeopardized the safety of passengers while riding on or using the running board of open cars. It appears from the evidence that this pole was set in such a manner that at a point about eight feet from the surface of the ground by reason of the angle of inclination it was six inches nearer the track, and if taken in connection with the projection of the running board when rounding the curve such proximity could have been found by the jury to expose a passenger on the running board to the danger of coming into contact with it. In the use of closed cars this pole might not have rendered the road unsafe, yet as an open car was used a different question is presented. The transportation of passengers often includes the use by them of the running board by the invitation and with the permission of the carrier, and where this condition of travel appears then ordinarily as matter of law negligence cannot be inferred on the part of a passenger who stands thereon while in transit. Moody v. Springfield Street Railway, 182 Mass. 158. Wilde v. Lynn & Boston Railroad, 163 Mass. 533. Mason v. Boston & Northern Street Railway, 190 Mass. 255. The roadbed and its equipment were constructed and operated for the carrying of passengers under the usual conditions of public travel, and it was for the jury, to determine whether in anticipation of such use of its car reasonable diligence called for a realignment of the pole to avoid the danger of possible collision, and whether its failure to take this precaution was negligence. See Feital v. Middlesex Railroad, 109 Mass. 398, 405; Sweetland v. Lynn & Boston Railroad, 177 Mass. 574, 579. The further question whether the plaintiff was guilty of contributory negligence and assumed the risk also was an issue of fact. It certainly could not have been ruled as matter of law that from his previous knowledge of the location of the pole upon becoming a passenger he thus took the chance of defective construction or negligent maintenance of the instrumentalities used [512] for the motive power. Knowledge by a traveller of a defect in a public way over which he is passing, or is about to pass, of itself is not sufficient to preclude a recovery if when using this portion of the way he thereby receives an injury ; nor is a servant precluded who under similar conditions uses the ways provided by the master. The traveller in one case and the servant in the other have a right to rely upon the presumption that the public authorities, and the master, have performed their duty in providing a reasonably safe way. A passenger also may rely upon the presumption that a common carrier has adopted and maintains a reasonably safe mode of transportation. If an injury is suffered by either, his previous knowledge of unsafe conditions is important on the question of his negligence, but it is not conclusive. Powers v. Boston, 154 Mass. 60. Torphy v. Fall River, 188 Mass. 310. Campbell v. Boston, 189 Mass. 7. Urquhart v. Smith & Anthony Co. 192 Mass. 257, 262. Upon boarding the car and seeing no vacant seat he took a position on the rear platform, when an acquaintance, who was seated, having said that room had been made for him, he started to pass around on the running board for the purpose of reaching the seat when he was struck. The plaintiff had a right to rely upon the presumption that the defendant would not carelessly expose him to injury, and if his change of position was taken either to avoid the danger of riding on the platform, or to obtain a more comfortable position, and for this purpose he stepped temporarily on the running board in order to pass from one to the other, it was for the jury to determine, to whom the question was properly left, whether under the attendant circumstances his conduct was careless. Moody v. Springfield Street Railway, 182 Mass. 158, 160. Mason v. Boston & Northern Street Railway, ubi supra. With the exception of the second which was given, the defendant’s requests for rulings therefore were rightly refused, and' the instructions given correctly stated the law. Pxoeptions overruled.