Ahern v. Boston Elevated Railway Co.

Sheldon, J. The jury could find that the plaintiff while in the exercise of his duty in regulating the movement of cars and of other vehicles at the corner of Charles and Cambridge streets, and while himself in the exercise of due care, standing at a place where at that time and under those circumstances he had a right to be, was approached by a car of the defendant driven in a manner which at that time and place could be found to have been negligent, and by reason of which he was obliged for his own safety to get upon the front step of the car; that this car then, going around the switch at an excessive and dangerous rate of speed, came by reason of this negligence in contact with another car going around the opposite switch, so as to break the step on which the plaintiff was standing and throw him to the ground. The defendant’s motorman who was operating the car was, according to his own testimony, aware of the plaintiff’s presence upon the step and saw the other car approaching the switch; there seems to have been no dispute, certainly there was evidence, that the plaintiff could not get upon the platform of the car or higher up than the step on which he was standing, because the vestibule door was closed; and it could have been found that the motorman ought to have seen that there was immediate risk of a collision, but disregarded the signals of the plaintiff to open the vestibule door. No doubt other findings might have been made; and it may be that a verdict for the defendant reasonably could have been expected. But it is plain that a verdict for the defendant could not have been ordered. As it could be found that it was by reason of the original negligence of the defendant’s motorman that the plaintiff was compelled to take his position on the car step and to remain there until the collision, it could not be said as matter of law, whatever the jury might have found, that he assumed the risks of his position. The jury could say that he was not there of his own choice. It follows that the defendant’s first, second, sixth, ninth, thirteenth, fifteenth, sixteenth, seventeenth, nineteenth and twenty-first requests were rightly refused. [510] The twelfth and fourteenth requests were given in substance. The eighteenth request could not be given as framed. A police officer charged with the duty which was imposed upon the plaintiff might very probably, in order to perform faithfully his whole duty, find himself compelled to get upon a part of a car where he might be exposed to injury and where passengers are not invited or expected to ride. This was claimed to be the case here, and it presented a question of fact for the jury. As to the twentieth request, the jury were instructed that the plaintiff could not recover unless he was in the exercise of due care, and in substance that this would not be so unless his getting upon the step of the car was for the reason and under the necessity that he claimed. This was more favorable to the defendant than the instruction we are considering, and so the defendant has as to this no ground of complaint. For like reasons, it cannot complain of the failure to give its twenty-second request. As the case was left to the jury, nothing more than ordinary negligence on its part needed to be proved. As the defendant’s exceptions were merely to the refusal to give its requests, we need not consider whether everything which the judge said to the jury was technically correct. Exceptions overruled.