Clark v. American Express Co.

Losing, J. The underlying trouble with the argument of the defendant’s counsel is twofold. In the first place he assumes that the rights of the plaintiff depend upon the actual situation and not on what appeared to the plaintiff to be the actual situation ; and in the second place he assumes that what his evidence showed to have been the fact must be assumed to have been the fact unless directly contradicted by evidence introduced by the plaintiff. The evidence warranted the jury in finding the following facts: The plaintiff went to the North Union Station in Boston, on the morning of the accident here in question, to go to Newburyport by the nine o’clock train, intending to take his seat in the smoking car. He expected to find the smoking car at the head of the train and for that reason did not look for it until he had reached the head end of the forward private car and the rear end of the baggage car. The smoking car was in fact the fifth car from the rear and the eighth car from the head of the train. Behind the smoking car were four ordinary passenger cars; ahead of it were three Pullman cars, one private. car for the officials of the Boston and Maine Railroad, the baggage car opposite to which the accident here complained of happened, and in front of that two express cars and a mail car. When the plaintiff arrived at the head end of the private car and at the rear end of the baggage car, he “ advanced a little further ” in search of the smoking car, leaned a little to the right to get a better view of the cars ahead of him, and was run into from behind by a truck of the defendant, heavily loaded with express matter, and was knocked down. The nine o’clock train which the plaintiff was intending to take was on track 13, on the left of the platform as the plaintiff was walking. The plaintiff was walking on the right side of that platform, that is to [163] say, nearer track 12 which was on the right side of it. The plaintiff did not step out of his direct course when he leaned over, and received no warning from the defendant’s servants who were pushing and pulling the truck. This made out that the plaintiff was where he had a right to be, that he was in the exercise of due care, and was injured by the negligence of the defendant’s employees. It is true that the plaintiff testified “ that he knew that the smoking car is never ahead of the baggage cars.” But it is also true that he had no reason to suppose that it would be behind the three Pullman cars and the private car, and for that reason he was going where he reasonably thought he ought to go to find it. It is also true that he testified that he knew that some of the cars are marked by little signs hung out on them. But a passenger cannot be charged with negligence because he passes by four cars without examining the signs hung out on them, when he is in search of the smoking car and he sees that the train is a long one and the train in fact consists of thirteen cars. When such a passenger finds himself at the head end of the forward passenger car (in this case a private car) and at the rear end of the baggage car, he cannot be said to be going beyond the invitation apparently held out if he advances a little further in search of the smoking car and leans over and' out to get a better view of the cars ahead of him, even if he sees that there are a number of trucks about and the contents of them or some of ¡them are being unloaded on to the train. We are also of opinion tjiat he was not guilty of contributory negligence as matter of law because he did not look behind him before he leaned over. For these reasons we are of opinion that the judge was right in not directing a verdict for the defendant, and the exception to the first ruling asked for is not well taken. The second, third and fourth rulings asked for were rightly refused. As we have already said, thé plaintiff’s rights depend upon wbat was reasonably necessary as the situation appeared to the plaintiff, not as the situation was in fact. The presiding judge was right in refusing to charge on the particular facts stated in the sixth ruling asked for. That was a matter to be considered by the jury in passing on the question whether the plaintiff was negligent. [164] The difficulty with the ninth request is that it assumes that to be a fact which the jury may have found not to be a fact. We have examined Cowen v. Kirby, 180 Mass. 504, and the other cases cited by the defendant, and find nothing in them which supports its contentions. Exceptions overruled.