Opinion
October 2, 1906.
October 17, 1906.
Present: KNOWLTON, C.J., HAMMOND, LORING, BRALEY, RUGG, JJ.
It is not the duty of the conductor of a street car, which has stopped on a street of a country town for passengers to alight, to warn a woman passenger about to step from the car that there is a gutter between the car and the sidewalk in the form of a ditch about one foot wide and about one foot deep, and, if the passenger in alighting steps into the gutter and is injured, in an action brought by her against the railway company operating the car for her injuries, the failure of the conductor to warn her of the existence of the gutter is not evidence of negligence on the part of the company.
TWO ACTIONS OF TORT, the first by a married woman for personal injuries received when alighting from an open electric car of the defendant on Park Street in the town of Gardner at about eight o'clock in the evening of August 16, 1903, and the second by the husband of the plaintiff in the first case for the loss of her services by reason of her injuries. Writs dated November 2, 1903.
In the Superior Court the cases were tried together before DeCourcy, J. The material evidence is described in the opinion. At the close of the evidence the judge ordered verdicts for the defendant; and the plaintiffs alleged exceptions.
J.F. McGrath, (J.P. Carney with him,) for the plaintiffs.
J.A. Stiles, for the defendant.
These two actions brought to recover damages by reason of injuries received by the plaintiff in the first action were tried together. We shall speak only of the first because the second stands or falls with it.
The defendant's track ran by the side of the road; and between the track and the sidewalk there was a gutter in the form of a ditch about one foot wide and about one foot deep, the nearest line of the ditch being two and one half feet from the nearest rail of the track. The car stopped for passengers to alight. It was about eight o'clock in the evening of the sixteenth day of August. As to the circumstances the plaintiff testified that when the car stopped she stood up to get off on the "usual side," "the left hand side"; that "there were people standing between the seats and between her and the left hand side (which was the street side); that she was standing facing the front of the car with her right hand toward the sidewalk; that she saw the conductor go around to the sidewalk side of the car; that he passed right by them [herself and a little girl who was with her] and did not offer to help her off; that she heard one bell rung, and . . . [the] . . . little girl who was with her hopped off, and then another bell rung, and she stepped on to the running board, and then stepped off (on sidewalk side) from the car, as she thought the car was going to start up; that she stepped off with the left foot, and stepped right into the ditch; that the bell did not ring but once, and that after the little girl stepped off it rang again; that when she got on to the running board she stood facing the sidewalk and looked out toward the sidewalk and saw what she thought was level ground; that there were no lights there; . . . that when she stepped into the ditch she was hurt."
The car did not start until after she had alighted. The place where the car stopped was a part of the highway over which the defendant had no control. The case is thus distinguishable from cases like Joslyn v. Milford, Holliston Framingham Street Railway, 184 Mass. 65. "The street is in no sense a passenger station, for the safety of which a street railway company is responsible." Barker, J. in Creamer v. West End Street Railway, 156 Mass. 320, 321. The plaintiff however contends that it was the duty of the conductor to caution her against stepping into the gutter, and that his failure to do so was negligence. But this contention is untenable. Gutters like the one described are not uncommon features of streets in our country towns. They are generally between that part of the highway which is wrought for public travel and the sidewalk. The plaintiff knew that she was alighting from the car upon the "sidewalk side," and the conductor may well have assumed that she was familiar with the existence of gutters and would govern herself accordingly. His failure to warn her was not negligence. See Bigelow v. West End Street Railway, 161 Mass. 393.
It is unnecessary to consider what would have been the duty of the conductor had there been some unusual cavity into which she was likely to fall.
Exceptions in each case overruled.