The opinion
Braley, J.
The evidence under the most favorable interpretation would not have warranted the jury in finding that the plaintiff had become a passenger. It was undisputed, that the car had been momentarily stopped not for the reception of passengers, but to await the passage of a team, and until the plaintiff reached and attempted to board the car, there was no outward manifestation of his intention to become a passenger. If as in Lockwood v. Boston Elevated Railway, 200 Mass. 537 , the conductor had seen the plaintiff while coming to the car, or in his attempt to get on by taking hold of the car and placing his right foot on the running board, and either expressly or by implication had assented, there would have been evidence of a contract for transportation, and the question of the plaintiff’s due care and of the defendant’s negligence would have been for the jury. Rand v. Boston Elevated Railway, 198 Mass. 569 . Gordon v. West End Street Railway, 175 Mass. 181 . Davey v. Greenfield & Turner’s Falls Street Railway, 177 Mass. 106 . But as there was no proof whatever, that the conductor was aware of the plaintiff’s presence, the starting of the car was not in violation of any duty owed to the plaintiff, and the verdict for the defendant was rightly ordered. Robertson v. Boston & Northern Street Railway, 190 Mass. 108 . Yancey v. Boston Elevated Railway, 205 Mass. 162, 170 .
Exceptions overruled.