Blair v. Boston Elevated Ry. Co.
| Decision Date | 10 September 1941 |
| Citation | 310 Mass. 1,36 N.E.2d 419 |
| Parties | ALICE BLAIR v. BOSTON ELEVATED RAILWAY COMPANY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
May 12, 1941.
Present: FIELD, C.
J., DONAHUE, DOLAN & RONAN, JJ.
Jurisdiction, Motor vehicle case. Superior Court, Jurisdiction. District Court Jurisdiction. Motor Vehicle, Motor bus, Operation. Street Railway, Motor vehicle.
An action of tort for personal injuries, sustained by slipping on a substance on the step of a motor bus of a street railway company which the plaintiff was boarding while it was stopped to receive passengers, arose "out of the operation of a motor vehicle" within G. L. (Ter. Ed.)
c. 218, Section 19, as amended by St.
1934, c. 387 Section 1, and was within the exclusive original jurisdiction of the proper District Court.
TORT. Writ in the Superior Court dated September 9, 1938. The action was reported by Dillon, J.
W. R. Morris, (H.
D. Steel & F.
R. Coogan with him,) for the plaintiff.
R. L. Mapplebeck for the defendant.
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 . Maley v. Fairhaven, 280 Mass. 54 . Whiteside v. Merchants National Bank of Boston, 284 Mass. 165 . Lord v. Cummings, 303 Mass. 457 .
The defendant contends that the action should have been brought in a District Court, and relies upon G. L. (Ter. Ed.) c. 218, Section 19, as amended by St. 1934, c. 387, Section 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 operating 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 v. Trustees of Eastern Massachusetts Street Railway, 254 Mass. 28. Short Line, Inc. v. Quinn, 298 Mass. 360 . Commonwealth v. Haydock, 286 Mass. 47 .
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, 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; Commonwealth v. Clarke, 254 Mass. 566; Jenkins v. North Shore Dye House, Inc. 277 Mass. 440; Di Cecca v. Bucci, 278 Mass. 15; Cochran v. M & M Transportation Co. 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 a vehicle that was safe for the use of its passengers. Labrie v. Donham, 243 Mass. 584 . Bannister v Berkshire Street...
To continue reading
Request your trial