West v. Linehan

Sheldon, J. It cannot be said as matter of law that the plaintiff was guilty of such negligence as to-bar his recovery. He was acquainted with the construction of the platform to which he went with the defendant’s driver, and seems to have been aware that there might be some danger of his head striking against the overhead beams if he went under them. But he was rightfully on the seat with th'e driver; and there was evidence that it had been the driver’s practice to stop his wagon and let the plaintiff get off the seat before backing under the beams and up to the platform. On this occasion the driver did not follow that practice, but took the plaintiff directly under the beams. He warned the plaintiff to stoop down, and the plaintiff did so. But there was evidence that when the driver had reached the platform he stopped his horses; the plaintiff started to get off, raising his head as he did so; and just then the horses started again and apparently moved some distance, knocking the plaintiff’s head against an overhead beam and injuring him. The jury might find that when the horses had stopped at the platform the plaintiff had a right to suppose that the final stop had been made and that the time had come [501] for him. to straighten up and dismount from his seat, and that in acting accordingly he was doing what any reasonable man might have done under the same circumstances. And it might be found that he had a right to assume that the driver had his horses under control, and would neither start them nor allow them to start to his manifest danger. Accordingly, the question of his due care was for the jury. So too the jury might find that the defendant’s driver was guilty of negligence in driving up to the platform in an unusual manner, which exposed the plaintiff to a greater risk than had been incurred on former occasions, and in stopping his horses at such a point and in such a manner as might be found to have been an assurance to the plaintiff that the time had come for him to alight, and then starting his horses, or allowing them to start, under circumstances which plainly exposed the plaintiff to the risk of injury. The plaintiff was not bound to show the exact particulars of the driver’s negligence. He was entitled to go to the jury if he proved facts from which an inference of negligence could properly be drawn. Melvin v. Pennsylvania Steel Co, 180 Mass. 196. Kleibaz v. Middleton Paper Co. 180 Mass. 363. Erickson v. American Steel & Wire Co. 193 Mass. 119. Ryan v. Fall River Iron Works Co. 200 Mass. 188, 191. The jury could find that the driver was negligent either because without warning the plaintiff he voluntarily started his horses when they were under his control, or because he failed to keep them sufficiently under control in view of the circumstances. There is nothing to indicate that the horses were at all restive, or that there was any difficulty in keeping them fully under control. The case was doubtless a close one on both issues; but it should have been left to the jury. Exceptions sustained.