McGARRY v. BOSTON ELEVATED RAILWAY

Negligence. Elevated Railway. At the trial of an action by a passenger on a train of an elevated railway to recover for personal injuries alleged to have been caused by negligent operation of an iron gate on a car, there was evidence introduced by the plaintiff tending to show that, as the plaintiff was leaving the car, walking with the rapidity usual on leaving an elevated train and in full view of the defendant's brakeman, she was struck by the iron gate operated by the brakeman, and that she did not see the gate before it struck her. Held, that there was evidence of due care on the part of the plaintiff and of negligence on the part of the brakeman.

MORTON, J.

These two cases were tried and argued together. The action by the female plaintiff, whom we shall speak of as the plaintiff, is for personal injuries received through the alleged negligence of a brakeman while getting off one of the defendant's cars at the Pleasant Street station in Boston. The other action is by her husband. The cases are here on the defendant's exceptions, which relate to matters of evidence and also to certain instructions which the court was requested to give and refused to give.

The exceptions in regard to matters of evidence have been waived. The other questions presented are the usual questions of due care on the part of the plaintiff and negligence on the part of the defendant. We think that there was evidence of due care on the part of the plaintiff and of negligence on the part of the brakeman. It was the brakeman's duty to know whether passengers were attempting to leave the car when he closed the gate and to govern himself accordingly. There was evidence warranting a finding that he was negligent in the performance of that duty. It could not be ruled as matter of law that the plaintiff was not in the exercise of due care if, while moving with the usual rapidity in order to alight from the car, she ran into the gate without observing it or the brakeman. The jury might properly find that she had a right to assume that the platform of the car would be unobstructed, and that those managing the car would exercise proper care in rendering it safe for her to alight, and it was for the jury to say whether under the circumstances she exercised due care or not. We see no error in the instructions that were given or in the refusal to give those which were requested.

Exceptions overruled.