Personal Injuries — Master and Servant — Evidence — Due Care. At the trial of an action for injuries occasioned by an alleged defective step evidence offered by the plaintiff of the condition of the step a month before and a week after the accident, in the absence of evidence that its condition then and at the time of the accident was the same, was properly excluded; and if, after the introduction of evidence that the condition of the step during that period remained unchanged, the offer was not renewed, the plaintiff had no ground of exception. At the trial of an action for injuries occasioned by an alleged defective step on the side of a locomotive engine the testimony of a master mechanic employed by the defendant as to the condition of the step on the day of the accident was plainly admissible.
At the trial of an action for injuries occasioned by an alleged defective step on the side of a locomotive engine upon which the plaintiff, an experienced brakeman in the employ of the defendant in obedience to an order of the conductor under whose direction he was working, stepped while the engine was in motion, the judge properly instructed the jury that the plaintiff must show that he was in the exercise of due care; that if he undertook to get on the side step of a moving engine he should have taken such a position as due care required of a prudent person in view of the danger to be apprehended from a misstep or any mistake in obtaining a foothold upon the engine; and that if, knowing that there was a safer way to ride upon the engine, he placed himself unnecessarily and without the prudence of an ordinarily careful man in a dangerous position and thereby contributed to the injury, he would not be entitled to recover.
HAMMOND, J.
1. We do not see that the plaintiff was prejudiced by the exclusion of the questions to Gould. It does not appear what the plaintiff expected to prove by the answers, but even assuming that the answers would have tended to support the plaintiff's case, there was no offer to show that the condition of the step for a month before or a week after the accident had been practically the same. The judge in the exercise of his discretion might properly exclude the evidence at that stage of the case. If the subsequent evidence, especially that of Barrett, tended to show that the condition of the step was practically the same for a month before or a week after the accident, the plaintiff should have renewed the offer. Not having done that, he has no cause of complaint.
2. The testimony of the witness Barrett was as to the condition of the step on the day of the accident, and was plainly admissible.
3. The rule of due care laid down by the court is to be interpreted with reference to the circumstances, one of which was the fact that the plaintiff was an experienced brakeman, and it was correct.
The plaintiff has not argued his exception to the other portions of the charge, and we do not further notice them, except to say that in substance the court followed the law as laid down in the decisions of this court. Johnson v. Boston Tow-Boat Co. 135 Mass. 209, and cases there cited. Moynihan v. Hills Co. 146 Mass. 586. Murphy v. American Rubber Co. 159 Mass. 266. Young v. Boston Maine Railroad, 168 Mass. 219.
Exceptions overruled.