Holliday v. Boston Elevated Railway Co.

Morton, J, The plaintiff, while a passenger upon one of the defendant’s cars and in, the act of stepping from the running board to a seat in the body of the car, was knocked off by the conductor, or fell off, and received the injuries complained of. The plaintiff testified that he boarded the car at the corner of Everett Street and Western Avenue in Allston. When he boarded it the car seemed full. There were some passengers on the running board toward the rear and others on the rear platform. The plaintiff stood for a few seconds on the running board at about the middle of the right hand side, and then walked slowly and carefully along the running board, the car being in motion, toward a vacant place which he saw in the second seat from the front; and with one hand on one stanchion and the other hand on another stanchion, was in the act of stepping into the car to take the seat when something happened, and he knew nothing until two days later. This was in substance the plaintiff’s account of the accident. Witnesses called by the plaintiff testified . to seeing the conductor pass along the running board and brush by or hit the plaintiff just as he was stepping into the car, and to seeing the plaintiff then fall off the car. Witnesses called by the defendant, including the conductor, contradicted the evidence. [426] thus introduced by the plaintiff and testified that the conductor did not pass along the running board. Plainly the question as to the manner in which the accident happened was one of fact for the jury. It could not be ruled as matter of law that the plaintiff was not in the exercise of due care in walking along the running board as he did to procure the seat which he saw. Nor could it be ruled as matter of law that there was no evidence of negligence on the part of the conductor, or that the accident to the plaintiff was not caused thereby. Exceptions overruled.