ROSE v. BOSTON NORTHERN STREET R'Y

Negligence. Street Railway. In an action against a street railway company by a woman passenger for personal injuries incurred while alighting from a car of the defendant, after being told by the conductor to change to another car, by stepping on some yielding earth at a place where repairs were being made and spraining her ankle, if it appears that the accident occurred in a public highway where the repairs which required the change of cars and occasioned the presence of the soft earth were being made by a railway company other than the defendant, over whose track the defendant operated its cars in that highway under an agreement which gave it no control of the track or repairs thereon, and if there is nothing to show that the conductor or the defendant or its agents knew or should have known that the ground on which the plaintiff stepped was likely to yield, and the plaintiff herself testifies that it appeared to her "as though everything was all right," that it "was kind of gravelly down there" and "looked level with the road," there is no evidence for the jury of negligence on the part of the defendant in selecting a place for the plaintiff to alight.

MORTON, J.

We assume in favor of the plaintiff that the evidence would warrant a finding that she was in the exercise of due care, that she did not cease to be a passenger in alighting in accordance with the conductor's directions to take another car for the purpose of being transported to her destination, and that, under the circumstances, the conductor was bound to exercise due care in selecting a place for her to alight and make the change. But we see no evidence that the conductor failed to exercise due care in selecting a place for her to alight. The change from one car to another was not rendered necessary by anything which the defendant had done or omitted to do. The repairs which rendered it necessary to make the change were being made by the Boston Elevated Railway Company, as lessee of the West End Street Railway Company, which owned the track and the defendant had nothing to do with them, and the place of the accident was a public highway. The case differs therefore, in essential particulars, from the case of Joslyn v. Milford, Holliston Framingham Street Railway, 184 Mass. 65, relied on by the plaintiff. The plaintiff contends that the place where she was invited to alight was not a suitable place because of the yielding nature of the ground on which she stepped as she got off the car, and which she contends caused the injury complained of. But there is nothing to show that the conductor or the defendant or its agents knew or in the exercise of proper care should have known that the ground where the plaintiff stepped down from the car was liable to yield. The plaintiff testified on direct examination that it appeared to her "as though everything was all right," and on cross-examination that "It was kind of gravelly down there. It looked all right as I put my foot down. It looked level with the road." The repairs were not made by the defendant as in Joslyn v. Milford, Holliston Framingham Street Railway, ubi supra, and there is nothing to show, we think, that the conductor was not justified in assuming as the plaintiff did that the road was "all right."

Exceptions overruled.