Sauvan v. Citizens' Electric Street Railway Co.

Loring, J. By the plaintiffs’ evidence Mrs. Sauvan (who will be spoken of hereafter as the plaintiff) had stepped up over the steps into the vestibule and was fairly and fully on the floor of the vestibule of the car before the conductor rang the starting bell. What she complains of is that the starting bell was rung when she had put one foot on the floor of the car, had thrown her weight on to that foot, and was in the act of bringing the other foot up and forward. Her contention is that on this evidence the jury could have found that the conductor, in giving the signal to start the car when he did, did not use the care which is owed by a common carrier to one of its passengers. If the starting signal was given when the plaintiff contends that it was given, it seems hardly possible that the car could have started before the second foot had reached the car floor, or at any rate it might well be contended that the conductor could not have anticipated such an instantaneous response to his signal. But apart from that, it is settled in this Commonwealth that under ordinary circumstances it is not negligence for a conductor to give the starting signal after the passenger is fully and fairly on the car. Weeks v. Boston Elevated Railway, 190 Mass. 563. In the ease of Gordon v. West End Street Railway, 175 Mass. [178] 181, the passenger was in the act of getting on to the car. In Hamilton v. Boston & Northern Street Railway, 193 Mass. 324, it was not wholly clear that the plaintiff was fully and fairly on the car in the first place: in the second place, the plaintiff was in the act of caring for her two years old child when the starting signal was given; and in the third place, the car was not to start under ordinary circumstances. It was at the beginning of a curve. In the case at bar there were no extraordinary circumstances. It is stated in the bill of exceptions that “ Mrs. Sauvan looked and was in perfect health at the time of the accident, and was a large, robust woman, weighing about one hundred and seventy pounds.” For these reasons, at least four of the rulings asked for (namely, the fourth, seventh, eighth and ninth) should have been given. No exception was taken to the portion of the charge as to the negligence of the motorman, which the defendant now complains of. The only exception taken by it was to the refusal to give the rulings asked for and to the charge, so far as it was inconsistent with them. Hxceptions sustained.