Brocato v. United Railways & Electric Co.

⁵⁷³ Pattison, J., delivered the opinion of the Oonrt. The action in this case was brought by the appellant to recover for personal injuries resulting, as it is alleged, from a fall while riding in a car of the appellee. At the conclusion of the plaintiff’s testimony a prayer was granted by the Court, at the instance of the defendant, withdrawing the case from the jury for a want of legally sufficient evidence entitling the plaintiff to recover. The plaintiff, Josephine .Brocato, with three others, Joseph Sabatina, Nick Defatta and her son, Samuel Brocato, hoarded a car of the defendant company at the corner of Garrison and Piedmont avenues.

Joseph Sabatina was the first to hoard the car, the plaintiff immediately followed, then came Defatta and following him Samuel Brocato. When Sabatina was in the car and the plaintiff was in the act of passing through the door of the car, the car started, and she fell, as she says, as the result of the “jerk” in starting, receiving the injuries complained of. As she expresses it, “just as I put my foot in (the car) the jerk of the car threw me.” She was then asked: “When you went to step from the platform inside of the ear did you have hold of anything?” Ans., “No, just as I tried to get in the jerk threw me.” At this time Defatta was behind her on the platform of the car, and the son was in the act of boarding it. The conductor, as Sabatina testified, was at such time in the car.

Sabatina when asked: “Did the car give a jerk that made you fall?” answered, “No, because I was holding myself,” “Q. Did it make anybody else fall in the car ? A. The others did not fall because the others did not get on. Q. Were there not other people on the back platform ? A. I don’t remember. .

Q. Did not Mr. Defatta and Mrs, Brocato’s son get on after you did? A. Yes, be was behind my sister. Q. Did either of them fall? A. No, sir; it was only when she made her step over this platform that she fell.” Defatta testified that “just as soon as he got on then the car jerked hard,” that at such time he was on the platform of the car and the plaintiff in front of ⁵⁷⁴ him and “just as she caught her foot on the step that leads into the car from the platform the car gave a jerk and she fell down and shoved me back.” This is, in substance, all the testimony in relation to the falling of the plaintiff and conduct of the company in the operation of its ear at such time If there was any negligence on the part of the company it must be found in the starting of the car before the plaintiff was in a place of safety, or in the defendant’s negligent operation of the car resulting in the “jerk” complained of.

It is true the plaintiff had not entered the ear, that is, had not passed through the door of the car, and was not seated before the oar was started, but was standing on the platform of the car before the open door, her foot raised in the act of stepping into the car. She, at such time, was not supporting herself in any way and while in this position she fell, as she says, from the motion of the car in starting. It can hardly be said that these facts, unassociated with any unusual circumstances or conditions, show negligence on the part of the company in starting the car while the plaintiff was still upon the platform and before she was seated. In Martin v. Boston E. R. W. Co., 216 Mass. 361 ; 103 N. E. 828 , as in the case before us, the only question in controversy was whether the trial judge should have ruled as a matter of law that the conductor was not negligent as to the time of starting the car, instead of leaving that issue to the jury as a question of fact.

In that case the plaintiff’s married daughter and the lattex^’s little boy boarded the rear vestibule and entered the car. The plaintiff followed as fax’