Martin v. Old Colony Street Railway Co.

DeCourcy, J. As the plaintiff was alighting from the front platform of the defendant’s car the bottom of her dress caught upon the sand-plunger in the vestibule and she fell to the pavement. The plunger is a metal pin with a round head; it is inserted vertically in a hole in the floor, within which it may move up and down freely, and is held in position by its own weight. When pushed down by the motorman’s foot it presses against a lever upon which it rests, and thereby opens a valve in the sand box; and when the foot is removed a spring pulls the plunger back into place. The jury were warranted in finding that there was no negligence in the conduct of the plaintiff contributing to the accident. The conductor had directed the passengers to leave the car by the forward door, and she had walked out upon the platform and reached the first step when her dress caught and she was thrown down. The bottom of her skirt hung two inches cfrom the ground, and the defendant’s contention that, as matter of law, she was careless because she failed to hold it up when alighting is untenable. And we cannot say that the evidence did not warrant a finding that the accident was due to the defendant’s negligence. The jury specially found that the sand-plunger was in improper condition. It is true the evidence on this point was meagre; but it would warrant a finding that the plunger projected farther above the floor than usual, and it could be inferred that this would not happen unless the pin was bent or worn, or otherwise out of order. The. judge rightly refused to give the eighth request. The defend — 538 — ant might be found liable for such an accident, even though the mechanism and appliances in the vestibule were in proper condition and adapted to perform the work for which they were installed. In alighting from the car the plaintiff had been invited to pass through the front vestibule and in close proximity to the electrical apparatus, brake gear and other equipment, and the duty devolved upon the defendant’s motorman to protect her from any danger incident to their presence by the exercise of the highest degree of care consistent with the practical performance of all his other duties. If it became necessary for her to pass near a sand-plunger which normally projected two inches above the floor and was likely to escape her notice, the jury could find that the motorman in the proper performance of his duty to her should have taken some precaution for her safety, either by temporarily removing the pin, or guarding it with his foot or warning her of its presence. What has been said disposes of the requests for rulings. The evidence that a different sand appliance was used on some of the defendant’s cars is immaterial in view of the jury’s answer to the first special question. The testimony that the motorman pressed the sand-plunger down into place immediately after the accident was rightly admitted. The witness added that when she released the plaintiff’s dress she did not pull the pin up. This evidence tended to show at least that at the time of the plaintiff’s injury the pin was out of place and higher than necessary or usual. Kingman v. Lynn & Boston Railroad, 181 Mass. 387. Exceptions overruled.