Eldredge v. Boston Elevated Railway Co.

The plaintiff upon boarding the car found all the seats occupied, and stood upon the running board, where the conductor collected his fare and recognized him a? a. passenger. It could not have been ruled as matter of law wider our decisions that by reason of his position, which he had taken *584with the defendant’s permission, he was guilty of contributory negligence if subsequently injured through its carelessness. Pomeroy v. Boston & Northern Street Railway, 193 Mass. 507, 511, and cases cited. If the plaintiff, although lawfully on the running board, could not disregard the usual conditions of travel arising from the concurrent use of the street by other travellers, there was evidence that, even if he faced the front of the car, he did not observe the wagon by which he was struck and injured until the moment of collision. A passenger so situated has the right to assume that during transit the carrier will not expose him to the peril of injury from passing vehicles, if by the exercise of reasonable diligence the movements of the car can be so controlled as to avoid collision with them. Fleck v. Union Railway, 134 Mass. 480. Foster v. Old Colony Street Railway, 182 Mass. 378. Lockwood v. Boston Elevated Railway, 200 Mass. 537. The question of the plaintiff’s due care, as the defendant concedes, was for the jury.

At the place of the accident the street is described as very narrow, with not more than sufficient width between the track and the curb for the car and a team to pass safely, if those in control of each took reasonable precautions. It is put beyond conjecture by the motorman’s testimony, that he saw the team on the track and repeatedly rang his gong to warn the driver of the approaching car. If in response to the warning the team left the track but proceeded in a course parallel with it, the safety of the passengers standing on the running board continued to be paramount to any supposed exigency that the progress of the car should not be delayed by either a full stop or a Slackening of speed. The speed of the car was put by the plaintiff at ten miles, while the motorman fixed it at four miles, an hour. But, whatever the speed may have been, the jury could say that both motorman and conductor knew of the narrowness of the street and the close proximity of the team to the track. If with this knowledge the car kept on before they had fully and definitely ascertained that it could go by without exposing the plaintiff xto the danger of injury from the probable movements which the team must take owing to the restricted space, there was evidence'for the jury of the defendant’s negligence, to whom this issue also should have been submitted under appropriate instruc*585tians. Wright v. Boston & Northern Street Railway, ante, 568. Marshall v. Boston & Worcester Street Railway, 195 Mass. 284. Lockwood v. Boston Elevated Railway, 200 Mass. 537.

In accordance with the terms of the report, judgment is to be entered for the plaintiff in the sum of $350.

So ordered.