Flansberg v. Heywood Bros.

Hammond, J. The verdict for the plaintiff which was given at a former trial of this case was set aside upon the ground that the plaintiff had not shown that he was in the exercise of due care. 190 Mass. 125. At the second trial the judge ruled that the plaintiff was not entitled to recover, and ordered a verdict for the defendant; and the case is before us upon the plaintiff’s exceptions. It is argued by the plaintiff that the evidence at this second trial differs from that given at the first and is more favorable to him, and that he was entitled therefore to go to the jury. We have carefully collated the evidence at the two trials, and we can find no valid ground for distinction on this question of the plaintiff’s due care. The salient feature of the case is that the plaintiff was approaching a dangerous place and knew it. While there is evidence that he did not know of the existence of this pile of rattan by which he was struck, and while the view of it was somewhat shut off by the porch of the wooden building, yet it is perfectly plain that if he had looked sooner than he did he could have seen it in time to escape injury. He was riding with his back toward the direction in which he was going. Even if his duties required him to ride that way, to a certain extent he was not thereby relieved from the duty of exercising care. Indeed it would seem as if when riding that way he would be required in a certain sense to be more attentive for his personal safety. A. H. Russell, for the plaintiff. W. I. Badger, (W. H. Hitchcock with him,) for the defendant. In the opinion given when the case was here before, ICnowlton, C. J., said: “ He [the plaintiff] easily could have stepped from the car at any time, as it was moving very slowly. He had been warned of the width of the car by the remark of the conductor, as well as by his own observation. The danger of riding on the side of such a car, in a yard generally so crowded with rattan, often piled upon the ground, and with buildings very near the track, called for great care, even if the plaintiff had not seen the pile which he afterwards encountered. In view of the conditions which the plaintiff knew, or would have known if he had exercised due care, we are of opinion that nothing appears in the evidence which justified him in riding on the side of this car without looking forward in time to see if there were obstructions with which he might come in contact. There was no evidence that he was in the exercise of due care.” These remarks are still as applicable to the case of the plaintiff as now presented as they were to the case as presented at the first trial. _Exceptions overruled.