Whitney v. Boston Elevated Railway Co.

The only question in this case is whether the evidence warranted a finding for the plaintiff. She testified that she was a passenger on one of the defendant’s open cars, in the front seat at the left hand side of the car, and that, as the car was leaving the subway going southward and was going out near Pleasant Street, the bar on that side of the car, which had been lip, was dropped down so that it struck her on her shoulder and injured her. There is no doubt, upon her testimony, that she was in the exercise of due care.

The defendant contends that her case was not made out, be*117cause she was the only witness on her side, and she testified that ihe did not see the conductor or motorman lower the bar, or see anybody else near it before she was struck by it. She was the only passenger. The conductor and motorman both testified, and although they disclaimed any knowledge of such an accident of occasion as the plaintiff described, it appeared that it was their duty to lower the bar on the left hand side of the car on every trip, at or about the place where the plaintiff said the car was when the bar struck her. There was no adequate explanation of its falling, except through the act or neglect of the conductor or motorman, or both, in permitting it to fall. They were in charge of it and it was their duty to lower it by a joint act. The fact that the plaintiff did not observe the conditions or see either of them do anything before she was struck does not prevent a legitimate inference from her testimony that the fall of the bar was produced by their agency, and that their conduct was negligent.

Exceptions overruled.