Blair v. Boston Elevated Ry. Co.

Decision Date10 September 1941
Citation310 Mass. 1,36 N.E.2d 419
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court


Report from Superior Court, Suffolk County; Dillon, Judge.

Action of tort by Alice Blair against the Boston Elevated Railway Company to recover for personal injuries allegedly sustained when the plaintiff slipped upon the step of the defendant's motorbus. The judge of the superior court granted a motion to dismiss for want of jurisdiction, and reported his ruling on the question of jurisdiction together with the agreed facts.

Judgment for the defendant.

Argued before FIELD, C. J., and DONAHUE, DOLAN, and RONAN, JJ.

W. R. Morris and H. D. Steele, both of Boston, and F. R. Coogan, of West Everett, for plaintiff.

R. L. Mapplebeck, of Boston, for defendant.

RONAN, Justice.

This is an action of tort to recover for personal injuries, sustained by the plaintiff as a result of slipping on a spot of saliva about the size of a half dollar upon the step of the defendant's motor bus, while she was boarding the bus, which had stopped at the South Station in Boston for the reception of passengers. The action was commenced in the Superior Court. The judge granted a motion to dismiss on the ground that there was want of jurisdiction as the action should have been brought in a district court. The parties agreed upon the facts, and the judge reported his ruling on the question of jurisdiction together with the agreed facts, with the stipulation that if he was wrong in his ruling and the plaintiff was entitled to recover upon the agreed facts then judgment was to be entered for her in a certain amount, otherwise judgment was to be entered for the defendant.

It is the duty of this court to consider and decide the question of jurisdiction and not pass to the merits unless it has first been determined that the trial court had jurisdiction over the parties and over the subject matter. Eaton v. Eaton, 233 Mass. 351, 124 N.E. 37, 5 A.L.R. 1426;Maley v. Fairhaven, 280 Mass. 54, 181 N.E. 798;Whiteside v. Merchants' National Bank of Boston, 284 Mass. 165, 187 N.E. 706;Lord v. Cummings, 303 Mass. 457, 22 N.E.2d 26.

The defendant contends that the action should have been brought in a district court, and relies upon G.L.(Ter.Ed.) c. 218, § 19, as amended by St.1934, c. 387, § 1, which, in so far as material, provides that District courts shall have exclusive original jurisdiction of actions of tort arising out of the operation of a motor vehicle.'

The defendant was engaged in the transportation of passengers by motor vehicles between established terminals along a regular route where passengers board and leave the vehicle in much the same manner as they would an electric street railway car. No contention is made that the defendant was not properly authorized to engage in this business or that the type, construction, equipment and operation condition of the particular vehicle in use at the time of the accident did not conform to the rules and regulations of the department of public utilities or that a permit to operate this vehicle was not duly granted by this department; all in accordance with G.L.(Ter.Ed.) c. 159A. By virtue of this chapter and without considering the nature of its business in the light of common law principles, the defendant was a common carrier of passengers for hire. Eastern Massachusetts Street Railway Co. v. Trustees of Eastern Massachusetts Street Railway Co., 254 Mass. 28, 149 N.E. 628;Short Line, Inc., v. Quinn, 298 Mass. 360, 10 N.E.2d 112;Commonwealth v. Haydock, 286 Mass. 47, 190 N.E. 37.

The usual operation of the vehicle as it proceeded along its designated route included the ordinary stops for the reception and discharge of passengers. Such stops were incidental to this mode of travel. The vehicle at the time of the accident was actually engaged in the transportation of passengers and the temporary stop to permit passengers to board it was a necessary part of its operation in conveying persons from place to place within the territory that it traversed. It was said in Cook v. Crowell, 273 Mass. 356, 358, 173 N.E. 587, 588, that ‘It is settled law in this commonwealth that a driver continues to operate a car on the highway during the time it is stopped in the ordinary course of its operation for soliciting trade or in calling for and delivering merchandise.’ See also Commonwealth v. Henry, 229 Mass. 19, 118 N.E. 224, L.R.A.1918B, 827;Commonwealth v. Clarke, 254 Mass. 566, 150 N.E. 829;Jenkins v. North Shore Dye House, Inc., 277 Mass. 440, 178 N.E. 644;Di Cecca v. Bucci, 278 Mass. 15, 178 N.E. 447;Cochran v. M. & M. Transportation Co., 1 Cir., 112 F.2d 241.

The plaintiff contends that her cause of action is based upon the negligent maintenance of the bus and not upon its operation. It was undoubtedly the duty of the defendant to exercise the utmost care consistent with the nature of its business to furnish...

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