The opinion
Braley, J.
The jury would have been warranted in finding on the evidence that the plaintiff, accompanied by other women, desiring to take passage, boarded the defendant’s open car while it was stationary at a regular stopping place by stepping on to the running board near the front end, and, while the plaintiff was walking along the running board preparatory to taking a seat by the side of a member of her party, the conductor gave the signal to start the car. It started, and after moving a short distance and while rounding a curve the car jerked or lurched, throwing her to the ground.
The question of the plaintiff’s due care, under these circumstances, was a question of fact for the jury. Gordon v. West End Street Railway, 175 Mass. 181 . Mason v. Boston & Northern Street Railway, 190 Mass. 255, 257 , and cases cited. Pomeroy v. Boston & Northern Street Railway, 193 Mass. 507, 512 . Hamilton v. Boston & Northern Street Railway, 193 Mass. 324 . Vine v. Berkshire Street Railway, 212 Mass. 580, 581 . Killam v. Wellesley & Boston Street Railway, 214 Mass. 283 .
If, however, the plaintiff had not become a passenger, the conductor was not negligent in starting the car before the plain *300 tiff had an opportunity to reach a position of safety. Yancey v. Boston Elevated Railway, 205 Mass. 162 .
It is undisputed that the car had reached the end of the journey on the north bound track, where the plaintiff got on, and had stopped to discharge passengers before passing around the loop to the south bound track, and the conductor had begun to reverse the seats. But he testified on cross-examination, that he saw “these people boarding the car,” and that he “made no objection to their boarding” and, in contradiction of the plaintiff, said that he saw her “step out of the car on to the running board ” and “warned her not to step off.”
The jury could find on the plaintiff’s evidence that this mode of passing or changing from one track to the other was unknown to her and that she was at a point where cars apparently made regular stops, for not merely the discharge but the reception of passengers. If they so found, a majority of the court are of opinion that they further could find on the conductor’s testimony previously quoted that the plaintiff had offered herself as a passenger, and, having been accepted, the relation of passenger and carrier existed at the time of the accident, and that whether the conductor exercised reasonable care thereafter was for their determination. Lockwood v. Boston Elevated Railway, 200 Mass. 537 . Lauchtamacher v. Boston Elevated Railway, 214 Mass. 103, 104 . .
The verdict for the defendant having been ordered improperly, the exceptions must be sustained.
So ordered.