Egan v. Old Colony Street Railway Co.

The original plaintiff at the time of the accident was being transported as a passenger in an open car used by the defendant in the operation of its railway. After becoming a passenger, and while standing on the running board, he was injured by coming in contact with a “ box wagon,” which was passing through the street. The evidence as to his position and conduct was given by fellow passengers, who witnessed the accident. Upon this testimony, with evidence of his declarations given by his daughter, the jury could have found that upon boarding the car it was so crowded that passengers were standing on the rear platform and the running board. By taking the place where he stood when injured, it cannot under such conditions be said as matter of law that he was negligent, and this question should have been submitted to the jury. Pomeroy v. Boston Northern Street Railway, 193 Mass. 507, and cases there cited.

The degree of care which the defendant was required to exercise has been often defined as such reasonable diligence for the safety of passengers as the nature of its business demanded. See Dodge v. Boston & Bangor Steamship Co. 148 Mass. 207; Galligan v. Old Colony Street Railway, 182 Mass. 211, 214, 215; Pomeroy v. Boston & Northern Street Railway, ubi supra. Upon this question the evidence was uncontroverted. It appears that as the car was running on the main track, it came to a switch opening into a track which ran into a side street, when the forward truck passed safely over, but the rear truck swiv*161elled, or turned, and went into the side track, bringing the rear part of the car into collision with the team, and thus causing the accident. The entire management of track and equipment was in the control of the defendant. It was content to remain silent, and offered no evidence either of its supervision and care of the track or of the cause of the derailment. If it could have shown that it was not negligent either in the construction or maintenance of the track or in the running of the car, yet, having rested its defence on the testimony put in by. the plaintiff, upon proof by her that the car left the track there was evidence of the defendant’s failure to discharge its duty. Pinney v. Hall, 156 Mass. 225. Feital v. Middlesex Railroad, 109 Mass. 398, 405. The jury, to whom this question should have been submitted, well might find from common experience, if nothing further appeared, that unless either the track or the car was defective, it would not have been derailed. Feital v. Middlesex Railroad, ubi supra. Griffin v. Boston & Albany Railroad, 148 Mass. 143, 146. Savage v. Marlborough Street Railway, 186 Mass. 203. See also Buckland v. New York, New Haven, Hartford Railroad, 181 Mass. 8; Galligan v. Old Colony Street Railway, 182 Mass. 211.

Exceptions sustained.