EUGENIA CHAMPAGNE vs. BOSTON ELEVATED RAILWAY COMPANY.

TORT for personal injuries alleged to have been sustained by the plaintiff on May 21, 1911, when she was a passenger on a street railway car of the defendant, by reason of the alleged negligence of the defendant's servants in starting the car when the plaintiff was in the act of alighting from it at or near the defendant's car barns on Mount Auburn Street in Cambridge. Writ dated July 15, 1912.

In the Superior Court the case was tried before Bell, J. The evidence is described in the opinion. The defendant asked the judge to make certain rulings, of which the first and second were as follows:

"1. There is no evidence of negligence on the part of the motorman.

"2. There is no evidence of negligence on the part of the conductor."

The judge refused to make these rulings, and also refused to make the fifth ruling requested by the defendant, but the exception to the refusal of this ruling was waived by the defendant at the argument. The judge gave to the jury the following instructions requested by the plaintiff, subject to exceptions by the defendant:

"2. The defendant owes a high degree of care to allow its passengers to properly and safely alight from its cars.

"3. The defendant owed a higher degree of care to the plaintiff, its passenger, than it did to a pedestrian or a person on the highway."

The defendant also excepted to the following portion of the judge's charge:

"The evidence would not show in this case specifically whose negligence it was, if you find negligence, — whether it was negligence of the conductor or of the motorman; but the fact, that a car starts, in itself, having come to a stop, at a time when it is dangerous for the passengers, our Supreme Court have said is evidence of negligence on the part of some one connected with the car, — and you are not obliged to determine which one was

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guilty of that negligence, if there was negligence, whether it was the conductor or the motorman."

The jury returned a verdict for the plaintiff in the sum of $450; and the defendant alleged exceptions.

F. J. Carney, for the defendant.

T. F. Murphy, for the plaintiff, submitted a brief.

DE COURCY, J. On the plaintiff's testimony the jury could find that the facts as to the accident were as follows: At about ten o'clock in the evening of May 21, 1911, the plaintiff with her two children boarded an open car of the defendant on Mount Auburn Street in Watertown. The car was bound for Hanover Street in Boston; and, as there were no unoccupied seats, they stood with others on the rear platform. Before reaching Mount Auburn bridge the plaintiff secured transfers for Huron Avenue. As the car was coming to a stop near the Mount Auburn transfer station, the conductor, who was on the running board near the front end, called out, "Transfer for Huron Avenue. This car is going to Hanover Street only." The car came to a full stop at or near the transfer station, and the plaintiff started to alight. While she had one foot on the running board and the other on the street, in the act of alighting, the motorman started the car and she was thrown down and injured. No witness testified that a starting bell was rung. In cross-examination the plaintiff testified that the car first stopped before reaching the waiting room, but within six feet of it; and that after she fell it came to a stop again, about a car length and a half ahead of her. Although there was evidence on behalf of the defendant that the plaintiff was injured by alighting from the car while it was moving, we must accept her version in view of the verdict.

1. There was no error in giving the plaintiff's second and third requests. It is difficult to formulate the general duty of a carrier in a single sentence that is not liable to verbal criticism, even if the single standard of ordinary care under the circumstances be adopted as a rule of universal application. The requests, as amplified in the charge, were reasonably accurate and adopted the phraseology that long has been used with approval. Donahoe v. Boston Elevated Railway, 214 Mass. 70. Rubinovitch v. Boston Elevated Railway, 192 Mass. 119. But the presiding judge did not confine his charge to the statement of general principles. The

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real controversy was one of fact, and the issue a narrow one. The plaintiff contended that the car came to a stop twice, the first time at the place where she was injured, and the second and final one at the waiting room. The defendant's contention, supported by its witnesses, was that the car stopped only once, and that the plaintiff was injured by attempting to alight while the car was yet in motion. The judge directed the attention of the jury to this controlling issue, and applied the law thereto in a way that was practical, pointed and accurate. He said: "If she left the car while it was in motion, and not when it was stopped, then she cannot recover." This was more helpful to the jury than abstract propositions of law, however accurate.

2. The defendant has waived its fifth request. It was not entitled to either the first or second rulings requested. The jury could find that the conductor should have anticipated that passengers probably would alight at the first stop after he announced that they must change cars, and that the darkness would prevent them from realizing that the car had not quite reached the regular stopping place, especially if they were at the rear end of the car. Under such circumstances the jury could say that the conductor was negligent in not warning the plaintiff that the car had not yet reached the station, and in failing to observe that passengers were alighting when the car first stopped. And on the plaintiff's version of the accident the motorman also might be found negligent in starting the car without waiting for a signal.

3. The portion of the charge excepted to, especially when read in connection with what goes before and what follows, is not open to objection. Killam v. Wellesley & Boston Street Railway, 214 Mass. 283.

Exceptions overruled.