JANE R. PIKE, administratrix, vs. BOSTON ELEVATED RAILWAY COMPANY.

MORTON, J. This is an action brought by the plaintiffs intestate in his lifetime, and prosecuted by the plaintiff as his administratrix after his death, to recover for injuiries sustained by him, while riding on the front platform of one of the defendant's cars, from a collision between the car and a repair wagon belonging to the defendant. The accident occurred on October 11, 1901, at about 5.30 A. M., the morning being dark and foggy.

The deposition of the original plaintiff was taken and he testified on cross-examination that he rode into town every morning on the electric cars and made it his custom to ride on the

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front platform, and had read the sign that passengers riding on the front platform did so at their own risk, and knew, if the sign was a rule of the company, that he took the risk of an accident happening, and that by standing on the front platform he was not breaking a rule of the company, but stood there at his own risk. It appeared that the only other person on the platform was the motorman. The plaintiff's intestate paid his fare and nothing was said to him by the conductor or motorman about standing on the platform. It was admitted by the defendant that people frequently rode on the front platform, the defendant contending that they did so subject to the rules of the company, and that fares were collected from them and that neither the conductors nor motormen objected to their so riding. For aught that appeared there was room enough inside the car, and it was not contended that the plaintiff's intestate would have been injured if inside the car. At the close of the evidence the judge, on the defendant's motion, ordered a verdict for the defendant, and the case is here on exceptions by the plaintiff to the ruling thus made.

We think that the ruling was right. The case seems to us to be governed by Burns v. Boston Elevated Railway, 183 Mass. 96, McDonough v. Boston Elevated Railway, 191 Mass. 509; and not, as the plaintiff contends, by McNee v. Coburn Trolley Track Co. 170 Mass. 283, and Sweetland v. Lynn & Boston Railroad, 177 Mass. 574. In the Sweetland case, the notice, as stated in the opinion, purported "to be a prohibition of passengers from riding on the front platform, and not a notice stating the terms on which they may ride there." In the present case the notice did not forbid passengers to ride on the front platform, but stated the terms on which, if they rode there, they would be carried, namely, at their own risk. In the McNee case the notice was similar to this, but there was only one elevator, and that was unsafe, and the workmen were expected to use it notwithstanding the notice. The same is true, in substance, of Boyle v. Columbian Fire Proofing Co. 182 Mass. 93. In the present case the defendant furnished a safe place for the plaintiff's intestate to ride in, and instead of riding there he rode on the front platform knowing that he thereby took the risk. There is nothing to show that the defendant provided the front platform unconditionally

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as a place for its patrons to ride on. The remark of the original plaintiff in his cross-examination that the rule was a dead letter, [Note p428] was, at the most, only an expression of opinion, and had no tendency to show that the rule had been waived or abandoned by the defendant. Neither did the fact that the conductors collected fares from the persons riding on the front platform and that neither they nor the motormen objected to their riding there tend to show that the rule had been waived or abandoned. Front platforms are not places ordinarily provided for passengers, and the conductors and motormen may well have supposed that persons riding there were content to do so under the rule and at their own risk.

Exceptions overruled.

G. W. Anderson, (E. H. Ruby with him,) for the plaintiff.

E. P. Saltomtall & S. H. E. Freund, for the defendant.