Buckley v. Boston Elevated Ry. Co.

• Decision Date: 24 May 1913
• Citation: 102 N.E. 75,215 Mass. 50
• Parties: BUCKLEY v. BOSTON ELEVATED RY. CO. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

215 Mass. 50

102 N.E. 75

BUCKLEY v. BOSTON ELEVATED RY. CO. (two cases).

Supreme Judicial Court of Massachusetts, Middlesex.

May 24, 1913

COUNSEL

R. H Sherman and Coakley & Sherman, all of Boston, for plaintiff.

Hugh D McLellan, of Boston, for defendant.

OPINION

RUGG C.J.

These are two actions whereby the plaintiff seeks to recover for the conscious suffering and the death of her intestate, who received fatal injuries from a car of the defendant company.

1. The defendant's prayer, that a verdict be directed for it in each action, was denied rightly. There was evidence from which it might have been found that the plaintiff's intestate approaching toward the rear an open car of the defendant, for the purpose of becoming a passenger, was beckoned by the conductor to a point farther forward and as he was in the act of getting upon the car it started under such conditions that he lost his hold and was injured. In view of these facts it is too plain for further discussion that a general verdict for the defendant ought not to have been directed. While the weight of the evidence on the printed record seems to indicate strongly that the accident happened in another way, it does not as matter of law require such a finding.

2. The defendant contends that it is not liable for the death of a passenger caused by the act of a servant who is in the exercise of ordinary care, but fails to attain to the highest degree of care consistent with the conduct of its business. St. 1907, c. 392, under which this action is brought, is a penal statute. Jones v. Boston & Northern St. Ry. Co., 205 Mass. 108, 90 N.E. 1152. It gives a cause of action if the life of a passenger is lost 'by reason of the * * * negligence of its agents or servants engaged in its business.' Negligence in this connection means the want of care which the law requires under the circumstances disclosed in each case. If the degree of care required is the highest consistent with the conduct of the business of the common carrier, then the negligence referred to in the statute is a failure to exercise that degree of care. Indeed, the phrase, 'highest degree of care,' which has come to be used commonly as expressing the duty of a common carrier towards its passengers, when accurately analyzed, means only that degree of caution which is reasonable in view of the relation of the parties and the fatal consequences which may ensue from breach of this duty. Donahoe v. Boston Elevated Ry. Co., 100 N.E. 1033. See Renaud v. N. Y., N.H. & H. R. R. Co., 206 Mass. 557, 560, 92 N.E. 710. The contention of the defendant in this regard cannot be supported.

3. It is not necessary to determine whether the portion of the charge excepted to was inaccurate, in that it omitted to state with clearness and fullness the element that the conductor was not obliged to wait for those running from a distance and in that way expressing a desire to board the car, although not then in a position to avail themselves instantly of the invitation to become passengers held out by the stopping of the car, and that such invitation might be withdrawn at any time before actually accepted by a would-be passenger ( Davey v. Greenfield & Turner's Falls St. Ry. Co., 177 Mass. 106, 58 N.E. 172; Duchemin v. Boston Elev. Ry. Co., 186 Mass. 353, 71 N.E. 780, 66 L. R. A. 980, 104 Am. St. Rep. 580, 1 Ann. Cas. 603), nor to determine whether the charge as given was adapted to the evidence, for the reason that at the conclusion of the charge the court further instructed the jury that 'if the plaintiff's intestate attempted to board the car after it was started, the plaintiff was not entitled to recover in either action.' This was sufficiently favorable to the defendant. This additional charge was given at the request of counsel for the...