Ryan v. Pittsfield Electric Street Railway Co.

Sheldon, J. The first instruction requested by the defendant was that on the evidence the plaintiff was not entitled to recover. Manifestly this could not have been given. There was evidence that the plaintiff and her sister, standing at a proper place, signalled the defendant’s car to stop and receive them as passengers; that the motorman saw them waiting for the,,car, must have seen their signal, and stopped the car accordingly; that while the plaintiff was in the act of getting on the car the conductor gave the signal to start the car, it started, and the plaintiff was thrown down and injured. The jury properly could find that the plaintiff was in the exercise of due care, and that the conductor was negligent in causing the car to be started before she had had opportunity to get fully upon the car. The conductor himself testified that when he gave the signal to start the car he was standing on the front end of the car where he could not see whether anybody was trying to get upon it at the side [287] where the plaintiff was, and that passengers at this point were accustomed to get upon either side of the car indifferently. The second instruction requested was given. The third request was not a correct statement of the law. Even if the car had made a reasonably long stop and the plaintiff had had ample opportunity to get on the car, and the conductor’s position was not proved to have been an improper one, yet if from that position he could not see by the exercise of due care whether an intending passenger was boarding the car, it could not be said as matter of law that it would not be negligent for him to order the car to be started without going where he could see whether any one was boarding the car. The jury must determine this question. The instructions given as to this matter were correct and sufficient. Millmore v. Boston Elevated Railway, 194 Mass. 323, 326. Rand v. Boston Elevated Railway, 198 Mass. 569. Lockwood v. Boston Elevated Railway, 200 Mass. 537. Marshall v. Boston Elevated Railway, 203 Mass. 40. The fourth request is defective in the same particulars as the third. As in the cases above referred to, it could be found that the defendant’s servant had stopped the car in response to the plaintiff’s signal; and had thereby invited her to become a passenger ; and in that event, even if the circumstance mentioned in this request, were found to exist, it could not be said as matter of law that she was necessarily negligent, or that she was bound to anticipate that the car would be started while she was about to board it. This case is unlike Bentson v. Boston Elevated Railway, 202 Mass. 377. It was for the jury to determine what the existing circumstances were and whether in view of those circumstances the plaintiff acted with proper regard to her own safety. This was the effect of the instructions given. Exceptions overruled.