Rose v. Boston & Northern Street Railway Co.

Morton, J. We assume in favor of the plaintiff that the evidence would warrant a finding that she was in the exercise of due care, that she did not cease to be a passenger in alighting in accordance with the conductor’s directions to take another car for the purpose of being transported to her destination, and that, under the circumstances, the conductor was bound to exercise due care in selecting a place for her to alight and make the change. But we see no evidence that the conductor failed to exercise due care in selecting a place for her to alight. The change from one car to another was not rendered necessary by anything which the defendant had done or omitted to do. The repairs which rendered it necessary to make the change were being made by the Boston Elevated Railway Company, as lessee of the West End Street Railway Company, which owned the track and the defendant had nothing to do with them, and the place of the accident was a public highway. The case differs therefore, in essential particulars, from the case of Joslyn v. Milford, Holliston & Framingham Street Bailway, 184 Mass. 65, relied on by the plaintiff. The plaintiff contends that the place where she was invited to alight was not a suitable place because of the-yielding nature of the ground on which she stepped as she [418] got off the car, and which she contends caused the injury complained of. But there is nothing to show that the conductor or the defendant or its agents knew or in the exercise of proper care should have known that the ground where the plaintiff stepped down from the car was liable to yield. The plaintiff testified on direct examination that it appeared to her “as though everything was all right,” and on cross-examination that “It was kind of gravelly down there. It looked all right as I put my foot down. It looked level with the road.” The repairs were not made by the defendant as in Joslyn v. Milford, Holliston & Framingham Street Railway, ubi supra, and there is nothing to show, we think, that the conductor was not justified in assuming as the plaintiff did that the road was “ all right.” Exceptions overruled.