While there was evidence proper to submit to a jury of the negligence of the defendant, and of the gross negligence of its servants or agents, there was no evidence of the exercise of ordinary care by the deceased; and the ruling of the court, that the action could not be maintained, was correct, if the burden was upon the plaintiff to prove such care. Whether such burden was upon the plaintiff depended upon whether the deceased was a passenger. If he was a passenger, and his life was lost through the negligence of the defendant, or the gross negligence of its servants or agents, it would not be necessary to prove that he was not negligent. Pub. Sts. c. 112, § 212. Commonwealth v. Boston & Lowell Railroad, 134 Mass. 211. Merrill v. Eastern Railroad, ante, 252. If, therefore, there was evidence to be submitted to the jury that the deceased was a passenger when he was injured, the ruling was wrong.
. The deceased was upon a regular passenger train from Boston, and the only ground for contending that he was not a passenger upon it was that he left it without surrendering his ticket or paying his fare. He had a ticket, which gave him a right to ride as a passenger, and he had no opportunity to surrender it, or to pay his fare. It cannot be assumed, as matter of law, that he was not riding upon the ticket which he held, or that he intended to evade the payment of his fare, or left the car for that purpose.
There was evidence tending to show that the deceased left the train after it had stopped at a station where passengers were accustomed, and had a right, to take and leave the cars. If a passenger, he would continue to be such while rightfully leaving the train and station.
It is objected, that he had no right to leave the car in the manner in which he left it; and that, before he was injured, he had ceased to be a passenger by leaving the car negligently, and as he had no right to do. But it does not appear that he did not so leave it in consequence of the negligence of the defendant.
*550The defendant had made provision only upon one side of the track for passengers to leave the cars, and it was dangerous to leave upon the other side. Upon the evidence, it was a question for the jury whether it was negligent in the defendant not to have provided some means to prevent passengers from leaving on the wrong side, or to notify them not to do so. If there was such negligence of the defendant, and, in consequence of it, the deceased, being a passenger upon the car, left it upon the wrong side, and thereby lost his life, we think he must be regarded as a “ passenger ” within the meaning of that word in the statute, although it did not appear that he was not negligent in so leaving the car. To this extent, we think that the ruling at the trial was wrong. • Verdict set aside.