JOHANNA GAGNON, administratrix, v. BOSTON ELEVATED RAILWAY COMPANY. SAME v. SAME.

Rugg, J. A two car train of the defendant, whose crew consisted of three, the motorman in the forward end of the first or motor car, Corbett, the conductor of the same car standing on its rear platform, and Foster, the conductor of the second car or trailer standing on the step of its rear platform, moved slowly along the platform of the subway station at Park Street and

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was about a car length from the place where it was to stop, when the plaintiff's intestate attempted to get upon the rear platform of the motor car, but his hand slipped from the grab iron and he fell under the train, and received mortal injuries. There was in force a rule of the defendant, which required conductors at this station to "take position on right hand rear step of car platform, with left hand grasping the body rail and right hand the dasher hand rail, facing outward toward the station platform and ride thus until the car arrives at its assigned berth. . . . The object of this is to keep any person from boarding the car while it is in motion." Another general rule required conductors to take a similar position under circumstances here disclosed "so as to guard the platform, and to prevent any person getting on or off while the car is in motion. This rule must be complied with in a manner to avoid controversy and insure the safety of passengers." Corbett, the conductor of the motor car, was violating these rules at the time of the accident by standing upon the platform of his car and not on its step.

The plaintiff can prevail only by showing at the least negligence of the defendant or of its servants. It has not been argued that there was any unfitness of its servants. It is urged, however, that negligence of the defendant may be inferred from its failure to require that the entrance doors be closed until the car came to a standstill. This was not an elevated train, but one composed of two trolley cars of the ordinary type. They were proceeding slowly along a well lighted platform at which they were to stop to receive passengers. There was no obscure or hidden danger connected with attempting to board such a car under these conditions. Everything was plainly in view, and the material circumstances were as well known to the ordinary passenger as to the defendant. The duty rested upon the defendant of providing for the public the quickest possible entrance to its cars consistent with safety. It would be unjust to hold the defendant negligent for permitting, by the mechanical construction and operation of its cars, the plaintiff's intestate to do that which she must show was due care on his part in order to recover in the action for conscious suffering. Hence there was no negligence on the part of the defendant.

It is argued that there was evidence from which the negli-

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gence of Corbett, the conductor of the motor car, may have been found from the fact that he was violating the rule of the defendant which required him to be standing upon the lower step of his car, grasping each hand iron, so as to stop people from getting upon the car while it was in motion. Stevens v. Boston Elevated Railway, 184 Mass. 476, Burns v. Worcester Consolidated Street Railway, 193 Mass. 63, 66, Partelow v. Newton & Boston Street Railway, 196 Mass. 24, 30, Chadbourne v. Springfield Street Railway, 199 Mass. 574, and Crowley v. Boston Elevated Railway, 204 Mass. 241, are claimed to be authorities in support of this contention. But the principle established by these cases has never gone to the extent of holding that the violation of a rule, enacted by a common carrier for the purpose of preventing members of the public from taking a wholly obvious risk is, by itself and apart from any other act of carelessness, evidence of negligence upon which the plaintiff can rely as a direct cause of injury. Apparently the primary object of the rule was to require its employees to protect the defendant from claims for personal injuries sustained by those who, relying upon cases like Corlin v. West End Street Railway, 154 Mass. 197, Marshall v. Boston Elevated Railway, 203 Mass. 40, 42, and Payne v. Springfield Street Railway, 203 Mass. 425, 432, try to get on a moving trolley car. In connection with other circumstances showing want of ordinary prudence, and sometimes without such support, violation of a rule would be entitled to consideration. But in the case at bar every element of danger was manifest and as plain to the plaintiff's intestate as it could be to any servant of the defendant. There was nothing concealed, dim or uncertain. There was no crowd upon the platform. The deceased was acting under no exigency, infirmity or limitation. If there had been no rule, it is plain that it could not be even plausibly contended that there was evidence of negligence on the part of Corbett. The argument of the plaintiff is that it was the exercise of due care on the part of her intestate to endeavor to board a moving car, and that it was negligence on the part of the conductor not to restrain him from such an attempt. She predicates negligence of the defendant's servant on his failure to thwart her intestate in his effort to use due care. The bald statement of such a propo-

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sition is its refutation. Under the conditions here disclosed, the act of the defendant's conductor in not observing such a rule, when there is nothing else to show want of proper caution on his part, cannot be treated as negligence toward the plaintiff's intestate.

Nor is there sufficient evidence of negligence on the part of the conductor Foster, who was on the step at the rear of the trailer. [Note p487-1] It is urged that he should have acted with more agility after discovering the peril of the plaintiff's intestate, and also that he should first have gone to his platform and signalled for an instant stop. He shouted to the conductor of the motor car, and rushing forward strove unsuccessfully to rescue the plaintiff's intestate. He did what might have appeared to any reasonable man the most practical and humane thing to do. It is pure speculation whether any other course would have produced better results.

As there is no evidence of negligence upon which the action for conscious suffering may be supported, it follows that there was no gross negligence of any servant or agent of the defendant, and the action under R. L. c. 111, § 267, fails.

Exceptions overruled.