Since the trial in this case before a jury, the exceptions in Welch v. Boston Elevated Railway, 187 Mass. 118, have been considered by this court and a decision announced which covers substantially all the questions raised at this trial.
The plaintiff was injured by stepping down in the space between two cars of a train on the elevated railway, while passing from one car to another at a station. These cars run upon an elevated track through much of their course, and they also pass through the subway and run around sharp curves and on steep grades which were made necessary by the location and construction of the subway and the connecting roads. The cars were coupled together so that in the centre of the passageway from car to car, there was an open space seven and one half inches wide and the platforms of the cars curved away to permit the train to go around the curves, so that on the sides of the passageway the space between the cars was ten and one half inches *155wide. The uncontradicted evidence tended to show that it was necessary to have this space between the cars, because the grades of the defendant’s road were heavier and the curves sharper in portions of the subway than on any other elevated system. The defendant has no responsibility for the mode of construction of its subway, which was built under legislative authority as a great public work, by the city of Boston, and afterwards leased to the defendant. There was no evidence tending to show that there was any other practicable mode of construction of the cars, which would have been safer and better.
The jury were instructed rightly that there was no evidence of negligence on the part of the defendant in the construction of its cars and car platforms; but they were allowed to find that it was negligence for the defendant to permit passengers to pass from one car to another, without warning them of the danger of stepping into the open space. This subject was covered by the decision in Welch v. Boston Elevated Railway, ubi supra. In that case as in this, it appeared that the chains which were kept up at the end of each car while the train was in motion, were taken down at the station, thereby extending an invitation to passengers to pass from one car to another if there was occasion so to do, and in the earlier case it appeared that the plaintiff, a woman, after taking a step or two into a car, discovered that it was a smoking car and turned to pass across the platforms into the next car and stepped down between the- cars. Neither she nor the plaintiff in the present case was given any warning. The only difference between that case and this, as the present plaintiff presents it, is that in that the plaintiff herself discovered that she had entered the smoking car and started to pass into the other; while the present plaintiff says that the guard on the platform called out, “ This is a smoker; pass through.” This difference is immaterial, for the open passageway with the chains down was as much an invitation to a lady who found herself at the door of the smoking car, to pass across into the other car, as were the words of the guard.
The real question is the same in both cases : Whether it was the duty of the defendant to have a man who should warn every passenger who was about to step from one car to another, of the danger of stepping into the opening. We are of opinion that *156the law does not impose this duty on the defendant. No one who observes a train of these ears as it enters or leaves a station can fail to see that there is a space between the cars. In pass-' ing from one car to another, a person who looks to see where he is stepping must discover the same fact, if he did not’know it before. The percentage in number of all the passengers that ride upon these trains who would pass from one car to another without knowing that there was such a space between them, in time to prevent an accident of this kind, is exceedingly small. The practical difficulty of giving to every passenger who is about to pass from car to car an express notice of the opening, which would be any better than the information gained by the use of his eyes, would be great. The annoyance and disturbance that would be caused by speaking to every such passenger would be very objectionable. A majority of the court remain satisfied with the decision in Welch v. Boston Elevated Railway, that there was no negligence on the part of the defendant in arranging its passageway for passengers and impliedly inviting them to use it at stations, whenever there is occasion so to do, without informing them in words that there is an open space between the platforms.
Exceptions sustained.