Isbell v. Pittsfield Electric Street Railway Co.

Morton, J. This is an action to recover for personal injuries received by the plaintiff while being carried as a passenger in a car operated by the defendant. There was a verdict for the plaintiff, and the case is here on exceptions by the defendant to the refusal of the presiding judge to give certain rulings that were asked for, and to certain instructions that were given. There clearly was evidence warranting a finding that the car was out of repair and was run at an excessive rate of speed; in other words, of negligence on the part of the defendant. The principal contention of the defendant is that the plaintiff was not himself in the exercise of due care and assumed the risk of injury from the want of repair and the manner in which the car was operated, and that the presiding judge was in error in instructing the jury as he did “that, when a common carrier undertakes to carry a person, it undertakes to carry him safely, and he does not assume a risk by the fact that he knows that there is some defect which might cause an accident. By inviting a person to become a passenger the obligations arise on the part of the defendant company to carry out the duties of a common carrier.” The defendant contends that the plaintiff assumed the risk because he continued to ride in the car after he discovered that it was out of repair and was run at a dangerous rate of speed, instead of getting off and taking another car. But there was evidence tending to show that the conductor assured him that the car was safe, and the jury could not, therefore, properly have been instructed, as the defendant in effect requested that they should be, that the plaintiff assumed the risk. Moreover the defendant could not thus throw upon the plaintiff the burden of its own negligence, but was bound as the presiding judge in [300] substance instructed the jury to exercise the highest degree of care consistent with the nature of its business to carry him safely. Whether the plaintiff was in the exercise of due care in leaving his seat and going to the rear platform was, under the circumstances which the evidence tended to show, clearly a question for the jury, and we see no error in the instructions or refusals to instruct in relation to that matter. The instruction that was excepted to and which is quoted above could not have been understood, we think, as meaning that the defendant was held to the liability of an insurer in respect to the safety of its passengers, but only as stating generally the obligation of a common carrier to transport its passenger safely, and that it was not excused from the performance of that duty by reason of the fact that the passenger knew of a defect which might cause an accident. The presiding judge had previously instructed the jury, as already observed, that the defendant was bound to exercise the highest degree of care consistent with the nature of its business. This distinctly negatived the idea that its liability was that of an insurer. We see no error in the manner in which the presiding judge dealt with the case. Exceptions overruled.