Carter v. Boston & Northern Street Railway Co.

Morton, J. This is an action of tort for personal injuries. There was a verdict for the plaintiff, and the case is here on exceptions by the defendant to the refusal of the presiding judge to give certain rulings that were requested and to that portion of the charge which left it to the jury to say whether the plaintiff could become a passenger before the door was entirely open. All of the rulings requested except rulings 2, 3 and 5 have been waived. Those are as follows: “ 2. There is no legal duty on the part of a conductor to warn a person intending to take a car not to place his hand upon a door which is in the process of opening. 3. There is no evidence in this case that the car was of improper design or construction.” “ 5. If the plaintiff in feeling for the handle of the door before the door was entirely open accidentally put his hand upon the door of the car, thereby catching his finger and cansing it to be crushed, he would not be entitled to recover for there would be no evidence of negligence on the part of the defendant.” We think that the rulings thus requested were rightly refused, and we see no error in the rulings and instructions that were given. It was for the jury to say whether the plaintiff had become a passenger at the time when he was injured. There was evidence tending to show that the car had come to a stop at a usual stopping place, at his signal, and that when the accident occurred he was in the act of entering the car, with his foot upon the step, without any objection or warning from the conductor who was standing in the doorway. This evidence, if believed, warranted a finding that the plaintiff was a passenger when injured. Evidence introduced by the defendant would warrant the inference that the plaintiff attempted to board the car before it came to a full stop and before the conductor had a — 25 — chance to warn him; but what the facts were in regard, to the matter was plainly for the jury. The plaintiff could not become a passenger without the assent, expressed in some form, of the conductor. Such an assent might be understood from the absence of any objection. It was not necessary to constitute such an assent that the door should be entirely open. It was enough if it was opened so far that the plaintiff was justified in believing that it was intended to afford him an opportunity to enter and no objection was made to his doing so by the conductor. It could not be ruled as matter of law that the plaintiff was not in the exercise of due care in placing his hand upon the door instead of upon the handle or the rail next to it, to assist him in entering, if he believed, as he testified that he did, that the door was open, and he received no warning to the contrary from the conductor. Neither could it be ruled as a general proposition of law that a conductor was not bound to warn a person intending to take a car not to place his hand upon a door that was in the process of opening. If the circumstances were such that a conductor would have reason to apprehend that a person intending to take a car might sustain injury in entering it by placing his hand upon a door that was in the process of opening, if not warned, then in the exercise of the high degree of care required of him it would be his duty to give such warning. The second request was therefore properly refused. The plaintiff’s testimony tended to show that the door came to a stop when nearly open and then started again. This could have been found to be due either to negligence on the part of the motorman who operated the lever which opened and shut the door, or to some defect in the construction of the car. The third request could not therefore have been properly given. The fact that the plaintiff in feeling for the handle may have accidentally put his hand upon the door before it was entirely open would not prevent him from recovering if he was in the exercise of due care and the injury which he received was due to the negligent manner in which the door was operated or to a defect in the construction of the car. The judge therefore properly declined to give the fifth request. Exceptions overruled*