Cram v. Metropolitan Railroad

112 Mass. 38

Opinion

Gray, J.

The proposition, stated at the end of the defendants’ fourth request for instructions, that if the conductor refused to stop the car, when asked by the child, it would not be a justification to the child for getting off the car, when in full motion, from the front platform, was strictly correct, and applicable to the case. The instructions given did not meet this part of the request otherwise than by instructing the jury that if the conductor, being requested by the boy to stop the car, neglected or wilfully refused to stop it, he was guilty of an act of negligence, for which the company would be responsible, if any injury resulted from it to the plaintiff, himself using due care; and that if the boy exercised that degree of care, which it was reasonable to expect from a boy of his age, capacity and experience, in getting off the front part of the car while in motion, under the circumstances, there, was no carelessness on his part which would prevent his recovering.

The majority of the court is of opinion that the omission to give more distinctly the instruction prayed for left it open to the jury to infer that the negligent or wilful refusal of the conductor to stop the car, when requested to do so, would of itself justify the plaintiff in getting off the front platform of the car while in motion; and that therefore the

Exceptions must be sustained.