Negligence, Street railway. It is not negligent for the conductor of a vestibuled box street railway car, which has stopped to take on passengers, to give the signal for the starting of the car when a woman, who has nothing in her appearance to indicate that she is not fully able to protect herself from being injured by the ordinary movement of the car in starting, after having lifted a child five years of age upon the car, has taken the child by the hand and has followed her into the car from the vestibule, but has not taken a seat.
The fact that a street railway car started with a jerk, in the absence of evidence tending to show that the jerk was unusual or extraordinary or that the movement differed in any way from that ordinarily attending the starting of such a car, is not evidence of negligence in the operation of the car.
De COURCY, J.
Melvina Benoit, hereinafter called the plaintiff, seeks to recover for personal injuries received from being thrown to the floor of the defendant's car in which she was a passenger. There is no controversy as to her due care. The questions raised by the exceptions are whether there was evidence for the jury that the conductor started the car too soon, or that the motorman started it in a negligent manner.
1. When a car has been stopped for the purpose of taking on a passenger it is the duty of the conductor not to give the starting signal until the passenger has got into such a position on the car as to make it safe to start. This does not mean that he must wait until all the passengers have been seated. Such an application of a carrier's duty would be impracticable under the demands of present day rapid transportation, and is not necessary for the passenger's safety according to general experience. It is settled law in this Commonwealth that under ordinary circumstances it is not negligence for a conductor to give the starting signal after the passenger is fully and fairly on the car. Sauvan v. Citizens' Electric Street Railway, 197 Mass. 176. Weeks v. Boston Elevated Railway, 190 Mass. 563. Boston Elevated Railway v. Smith, 168 Fed. Rep. 628.
The facts bring this case within the established rule. The plaintiff was in the body of the car when the conductor rang the bell. She was thirty-six years old, and apparently fully able to protect herself from being injured by the ordinary movement of a car in starting. It seems clear from the testimony of the passengers and the conduct of her husband that there was nothing in her appearance to indicate to the conductor that she needed special care by reason of pregnancy. The fact that she was leading her five years old child by the hand is not enough to bring the case at bar within the scope of Hamilton v. Boston Northern Street Railway, 193 Mass. 324. In that case the plaintiff, with her arms extended in front of her, was in the act of caring for her two years old child when the car started at the beginning of a curve. And the Hamilton case differs from this in other particulars. See Sauvan v. Citizens' Electric Street Railway, ubi supra. Under our decisions the defendant was entitled to the third ruling requested. Tupper v. Boston Elevated Railway, 204 Mass. 151, and cases cited.
2. The presiding judge should have given the fourth ruling requested by the defendant. The plaintiff and her husband said that the car started with a jerk, but there is nothing in the record to show that it was an unusual or extraordinary jerk, or that the movement differed in any way from that ordinarily attending the starting of an electric car. No other facts appear from which it could be inferred that there was carelessness in the way in which the motorman started the car. Work v. Boston Elevated Railway, 207 Mass. 447.
The judge should have ruled, as requested by the defendant, that upon all the evidence the plaintiff could not recover; and under St. 1909, c. 236, judgment must be entered for the defendant.
So ordered.