Williford v. Southern Ry. Co

gone here (indicating). That would have given me a chance to have seen the engine up the track. Q. You would have been able to see the engine better then than where you were? A. Yes, sir; coming out from behind this office I was blinded, of course. Q. By what? A. By the headlight of the engine. Q. Did the headlight do you any good? Did it give you any light to enable you to see? A. No, sir; I should say it did more harm. Q. Now, you say as a matter of fact you went around the upper side of the truck or the lower side? A. Went around on the lower side where the depot is. Q. That carried you next to that window at the office? A. Yes, sir. Q. And then you had to pass out from the office to the track? A. Yes, sir. Q. Were you, Mrs. Williford, nearer to the track there than you would have been at any other point? A. Just as I turned; yes, sir. Q. That projection is nearer the track than any other part of it? A. Yes, sir." Miss Ethel Halford, a witness for the plaintiff, testified as follows: "Q. What was the condition of the weather, Miss Halford? A. It was raining. Q. With respect to light or darkness what was it? A. On the inside there was light. But there was no light on the outside. Q. There was no light on the outside? A. No, sir; everything was in total darkness on the outside. Q. Was the moon shining? A. No, sir; it was cloudy, misting rain. Q. Well, Miss Halford, do you remember when you came out of the waiting room to take the train? A. Yes, sir. Q. Did you find anything in your way, or not, as you came out? A. Well, there was a truck or something near the door. Q. What happened to Mrs. Williford? A. Well, she was knocked down in some way, and in her falling she fell against me. Q. Miss Halford, do you know how she was hit, and by what-what it was hit her? A. I couldn't say; I don't know. Q. Why was it that you didn't know? A. Well, I couldn't see. Q. You couldn't see? A. I suppose it was some part of the train. Q. You say you couldn't see? A. No, sir." This testimony shows that the question of contributory negligence was properly submitted to the jury.

The last error assigned is because the presiding judge refused to direct a verdict on the ground that the testimony showed that the injury arose from inevitable accident. What has already been said disposes of this question.

Judgment affirmed.

CARTER 7. BOSTON & N. ST. RY. Co.

(Supreme Judicial Court of Massachusetts, Middlesex, Feb. 23, 1910.) [91 N. E. Rep. 142.]

Carriers Injuries to Passenger-Commencement of RelationBoarding Car.*-Where a car had come to a stop at a usual stopping place in response to plaintiff's signal, and he was in the act of entering it, with his foot on the step, without any objection or warning from the conductor, who was standing in the doorway, when he was injured by the motorman suddenly opening the door further, while defendant claimed that plaintiff attempted to board the car before it came to a full stop and before the conductor had an opportunity to warn him, whether plaintiff had become a passenger at the time he was injured was for the jury.

Carriers-Passengers-Street Railroads Opening Door.-Where a street car had come to a full stop in response to plaintiff's signal, it was not necessary, to constitute the carrier's assent to plaintiff becoming a passenger, that the car door should be entirely open to permit him to enter.

Carriers Passengers-Contributory Negligence. Where a passenger was injured while boarding a street car by placing his hand on the door, which had not been fully opened, he was not guilty of negligence, as a matter of law, in placing his hand on the door, instead of on the handle or rail next to it; he having testified that he believed the door was open and received no warning from the conductor to the contrary.

Carriers Injuries to Passengers-Duty of Conductor. Where a street car passenger was injured by placing his hand on the partially open door of the car as he was about to enter it, it could not be ruled, as a matter of law, that the conductor was not bound to warn him against the danger of so doing.

Carriers Injuries to Passengers-Street Railroads.-Where plaintiff was injured while boarding a street car by his hand coming in contract with the partially open door as it was in the process of opening, and plaintiff's testimony showed that the door came to a stop when nearly open and then started again, a request for a ruling that there was no evidence that the car was of improper construction was properly refused.

Carriers Street Railroads Injuries to Passengers Contributory Negligence. Where a passenger while boarding a street car was injured by placing his hand on the door as it was opening, the fact that in feeling for the handle plaintiff may have accidentally put his hand on the door before it was entirely open would not constitute contributory negligence if he was in the exercise of due care, and the *See first foot-note of preceding case.

Carter v. Boston & N. St. Ry. Co

injury which he received was due either to the negligent manner in which the door was operated or to a defect in the construction of the

car.

Exceptions from Superior Court, Middlesex County; Charles U. Bell, Judge.

Action by George Carter against the Boston & Northern Street Railway Company. Verdict for plaintiff, and defendant brings exceptions. Overruled.

Tort for personal injuries to plaintiff, whose hand was caught in the door of a car of defendant company as he was about to enter the car. The car had stopped, and plaintiff took hold of the hand rail to enter it, when the door, which was operated by the motorman at the other end of the car, suddenly opened farther and plaintiff's hand was caught and injured.

Edward F. McClennen, Austin T. Wright, and Brandeis, Dunbar & Nutter, for plaintiff.

Endicott P. Saltonstall and Sanford H. E. Freund, for defend

ant.

MORTON, J. This is an action of tort for personal injuries. There was a verdict for the plaintiff, and the case is here on exceptions by the defendant to the refusal of the presiding justice to give certain rulings that were requested and to that portion of the charge which left it to the jury to say whether the plaintiff could become a passenger before the door was entirely open. All of the rulings requested except rulings 2, 3 and 5 have been waived. Those are as follows:

(2) "There is no legal duty on the part of a conductor to warn a person intending to take a car not to place his hand upon a door which is in the process of opening." (3) "There is no evidence in this case that the car was of improper design or construction.” (5) "If the plaintiff in feeling for the handle of the door before the door was entirely open accidentally put his hand upon the door of the car, thereby catching his finger and causing it to be crushed, he would not be entitled to recover, for there would be no evidence of negligence on the part of the defendant."

We think that the rulings thus requested were rightly refused, and we see no error in the rulings and instructions that were given. It was for the jury to say whether the plaintiff had become a passenger at the time when he was injured. There was evidence tending to show that the car had come to a stop at a usual stopping place, at his signal, and that when the accident occurred he was in the act of entering the car, with his foot upon the step, without any objection or warning from the conductor who was standing in the doorway. This evidence, if believed, warranted a finding that the plaintiff was a passenger when in

Carter v. Boston & N. St. Ry. Co

jured. Evidence introduced by the defendant would warrant the inference that the plaintiff attempted to board the car before it came to a full stop and before the conductor had a chance to warn him; but what the facts were in regard to the matter was plainly for the jury. The plaintiff could not become a passenger without the assent, expressed in some form, of the conductor. Such an assent might be understood from the absence of any objection. It was not necessary to constitute such an assent that the door should be entirely open. It was enough if it was opened so far that the plaintiff was justified in believing that it was intended to afford him an opportunity to enter and no objection was made to his doing so by the conductor. It could not be ruled as matter of law that the plaintiff was not in the exercise of due care in placing his hand upon the door instead of upon the handle or the rail next to it, to assist him in entering, if he believed, as he testified that he did, that the door was open, and he received no warning to the contrary from the conductor. Neither could it be ruled as a general proposition of law that a conductor was not bound to warn a person intending to take a car not to place his hand upon a door that was in the process of opening. If the circumstances were such that a conductor would have reason to apprehend that a person intending to take a car might sustain injury by placing his hand upon a door that was in the process of opening, if not warned, then in the exercise of the degree of care required of him it would be his duty to give such warning. The plaintiff's testimony tended to show that the door came to a stop when nearly open and then started again. This could have been found to be due either to negligence on the part of the motorman who operated the lever which opened and shut the door, or to some defect in the construction of the car. The third request could not therefore have been properly given. The fact that the plaintiff in feeling for the handle may have accidently put his hand upon the door before it was entirely open would not prevent him from recovering if he was in the exercise of due care and the injury which he received was due to the negligent manner in which the door was operated or to a defect in the construction of the car.

Exceptions overruled.

PINSON. SOUTHERN RY., CAROLINA DIVISION.

(Supreme Court of South Carolina, March 29, 1910.)

[67 S. W. Rep. 464.]

Trial-Nonsuit-Propriety.-In passing on a motion for nonsuit, testimony must be considered in the light most favorable to plaintiff; and, if there is any testimony which by a reasonable inference will support plaintiff's cause of action, nonsuit is improper.

Carriers Passengers-Intoxicated Passenger-Care Required.*— The rule as to the care required by a carrier for the protection of an intoxicated passenger does not apply unless the carrier's agents knew, or by proper diligence could have known, of his intoxicated condition.

Carriers Passengers-Injuries-Liability. That an employee of defendant railroad company, who was not a member of the crew of the passenger train from which decedent got off, and was not then on duty, and did not know that decedent got off the train, saw him walking on the company's tracks in a drunken condition would not make the company liable for running over decedent; it not being within the scope of such employee's duty to protect him from injury. Railroads Injuries to Trespassers-Care Required.†-Where decedent had left defendant's passenger train, and was walking on the track when injured by another train, so as to make him a mere licensee, defendant was only held to ordinary care to prevent injuring him.

Railroads Equipment—Automatic Air Brakes.—A railroad is not required by any law to equip its freight trains with automatic air brakes.

Railroads Injuries on Track—Actions—Proximate Cause.—Where a brakeman, after calling to one on the track to get off, did not have time to apply the air brakes to stop the train before the pedestrian was struck, any negligence of the company in not equipping all of its cars with air brakes, so as to permit their application, was not the proximate cause of the injury.

Death-Right of Action.-At common law an administrator had no right of action for intestate's death; the action being purely statutory. Death-Action-Elements of Damage—Injury to Dead Body.-Un

*See_last foot-note of Mobile, etc., R. Co. v. Jackson (Miss.), 30 R. R. R. 120, 53 Am. & Eng. R. Cas., N. S., 120; foot-note of Chesapeake & O. Ry. Co. v. Crank (Ky.), 29 R. R. R. 657, 52 Am. & Eng. R. Cas., N. S., 657; Stringfield v. Louisville Ry. Co. (Ky.), 29 R. R. R. 648, 52 Am. & Eng. R. Cas., N. S., 648; Louisville & E. R. Co. v. McNally (Ky.), 29 R. R. R. 642, 52 Am. & Eng. R. Cas., N. S.,

642.

For the authorities in this series on the subject of the care due from trainmen to licensees and trespassers on railroad tracks, see third foot-note of Rutherford v. Iowa Cent. Ry. Co. (Iowa), 32 R. R. R. 647, 55 Am. & Eng. R. Cas., N. S., 647.