ELLEN CONETON v. OLD COLONY STREET RAILWAY COMPANY.

MORTON, J. This is an action of tort to recover for injuries sustained by the plaintiff while alighting from one of the defendant's cars at or near the division line between Quincy and Braintree. At the close of the plaintiff's evidence the presiding judge [Note 1]

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directed a verdict for the defendant. The case comes here on the plaintiff's exceptions to the ruling thus made, and to the exclusion of certain evidence.

The accident happened on August 19, 1904, between 8 and 8.30 in the evening. The place where the plaintiff attempted to alight was on a switch or turnout near a signal box. It was the duty of the conductor to throw the signal, and the car came to a stop on the turnout to enable him to do so, and he left the car for that purpose. While the car was stopped and the conductor was at the signal box the plaintiff attempted to alight. She gave no notice to the conductor or the motorman that she wanted to get off the car at that place, and there was no evidence that either one knew or had reason to know of her intention or desire to alight. As she was getting off the motorman started up the car and she was thrown to the ground, receiving the injuries complained of. The line between Quincy and Braintree was a fare limit. The turnout was near the line and there was evidence that passengers got on and off the cars at that point. There was no white post there to indicate, if that is material, that it was a regular stopping place. The plaintiff offered to show that conductors had been in the habit of calling out and announcing the limit of the car fare, and that people had been accustomed to leave the car at the place where it stopped when the accident occurred. The judge excluded the evidence thus offered and the plaintiff duly excepted. There was no evidence tending to show that any such announcement had been made at the time of the accident. But as has been already stated, it appeared from other testimony in the case that passengers got on and off the car at the place where the accident occurred, and no harm was, therefore, done by the exclusion of the evidence that people were accustomed to leave the car at that place.

It is plain, we think, that there was no evidence of negligence on the part of the conductor. He did not know and had no reason to know that the plaintiff desired to get off the car, and if he did he gave no signal to start the car and did not in any way cause it to be started or contribute to the accident. Neither do we think that there was any evidence of negligence on the part of the motorman. He likewise did not know and had no reason to know when he started the car that the plaintiff was attempting to alight,

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or that she wished to alight. Although, as the plaintiff testified, the place was a stopping place, it was a stopping place of such a nature that those in charge of the car cannot be held to be to blame for starting the car while a passenger was alighting, in the absence of any signal from the passenger that he or she wished to alight or of any knowledge or reason to know that the passenger was attempting to alight or wished to alight. The mere fact that passengers were accustomed to alight at that place did not of itself without anything more impose upon the motorman the duty of seeing that none were attempting to alight when he started the car. He might well assume in the absence of notice to the contrary that no passenger was attempting to alight. Spaulding v. Quincy & Boston Street Railway, 184 Mass. 470. Oddy v. West End Street Railway, 178 Mass. 341. If neither the conductor nor the motorman was negligent in starting the car, the fact, if it was a fact, that it started with a "lurch" or "gave a lurch," as the plaintiff testified, would not help the plaintiff. The manner in which the car started could be material only in case the circumstances were such as to show that the conductor or motorman knew or had reason to know that she was attempting to alight or desired to alight and owed a duty to her not to injure her by an improper starting of the car.

Evidence that it was the custom or habit of conductors to announce or call the limit of the car fare was immaterial. There was, as already observed, no evidence of any such announcement or call on the evening in question, and it appeared independently of such evidence that passengers got on and off at the place where the car had stopped when the accident occurred.

Exceptions overruled.

J. W. McAnarney, (T. F. McAnarney with him,) for the plaintiff.

Asa P. French, (J. S. Allen, Jr., with him,) for the defendant.