Dewey v. Boston Elevated Railway Co.

Sheldon, J. We have no doubt that the jury could find that the plaintiff was in the exercise of due care. There was evidence that when he entered the space between the seats he expected to find there room to sit down; and the jury could find that he was not negligent in so expecting. He left that place and went upon the running board in obedience to an order from the conductor, and it could be found that this was not negligent conduct. He saw here between the car and the wall of the subway room enough for him to stand and move in safety. It was, as the jury could find, in obedience to the conductor’s notice that there was room for iiim in the rear that he turned and started in that, direction. He did not know, as could be found, that the open space was narrowed just ahead of the car by the track’s coming in close proximity to the wall. He well might suppose that the conductor would not in effect have directed him to go to the rear if that could not be done with safety. His injury did not occur while he was violating a known rule of the company. We have seen that the jury could find that he had not intentionally violated the rule, and was not in fault for what he had done. His injury occurred after he had obeyed the conductor’s order and conformed to the rule.- We are of opinion also that there was evidence of negligence on the part of the conductor, although that is a much closer question. It is true that the rule of the company forbidding passengers to stand between the seats was a reasonable one; and the judge so ruled. But the circumstances of the particular case as those circumstances were known to the conductor might render the immediate enforcement of that rule so dangerous to the life or limb of a passenger as to make it a question for the jury whether its temporary violation should be allowed. No doubt a passenger who took such a position in disregard and intentional violation of the rule, not under the stress of any temporary peril, but merely for some such reason as that he did not like to [604] stand upon the running board and did not choose to wait for a less crowded car, would assume all the risks of his position and perhaps would not have any of the rights of a passenger; but that is not the question here presented. The conductor must be taken to have known the construction of the subway; and if there were dangers which were or ought to have been known to him and of which the plaintiff was ignorant, to which the plaintiff would be exposed by coming upon the running board while passing through this part of the subway, it could be found to have been negligent for the conductor to require the plaintiff to take his place at once upon the running board without warning bim of these dangers. It could be found also that what was said by the conductor to the plaintiff was intended by the former and understood by the latter to be a notice to the plaintiff that he should go at once to the rear of the car. The distance between the car and the wall of the subway was sufficient at that point for the plaintiff to do so in safety. But that distance was not uniform; it was much diminished a little farther on. The jury could find that the conductor knew this and that the plaintiff did not know it. They could find that under these circumstances the conductor ought not to have given the direction, but to have warned the plaintiff to stand close to the body of the car until he could turn or move with safety. The instructions on these questions were sufficiently full and accurate, and afford the defendant no ground of exception. Taking together the whole of what was said to the jury as to the degree of care required of the defendant, we find no material error therein. Some of the sentences that have been singled out for criticism went too far, if taken by themselves; for example, the statement that the conductor “was bound to use the utmost care to provide against any injuries or mishaps that human foresight could anticipate or foresee.” But the whole matter was amply explained, and brought into conformity with our decisions. Gardner v. Boston Elevated Railway, 204 Mass. 213. Glennen v. Boston Elevated Railway, 207 Mass. 497, 498. Savageau v. Boston & Maine Railroad, 210 Mass. 164, 168. Donahoe v. Boston Elevated Railway, 214 Mass. 70. What we have said disposes of most of the exceptions that were [605] argued by the defendant. As the case was left to the jury, we cannot see that there was any error in the refusal to give to them, in the language asked for, the specific requests made by the defendant, or in the rulings that were made. Many of them were covered sufficiently by what was said; others were not applicable to the issues presented to the jury. We find no material error in the trial. Exceptions overruled.