Creamer v. West End St. R. Co.
| Decision Date | 10 May 1892 |
| Citation | 31 N.E. 391,156 Mass. 320 |
| Parties | CREAMER v. WEST END ST. RY. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J.D. Long, for plaintiff.
M.F Dickinson, Jr., and W.B. Sprout, for defendant.
The plaintiff's intestate was instantly killed on Warren street by an electric car, which, it was testified, was running at a speed of 15 miles an hour. His death, under the circumstances, gave the plaintiff a right to maintain the action under St.1886, c. 140, if, when killed, he was a passenger, or if, not being a passenger, he was in the exercise of due diligence. He had ridden as a passenger upon another car, which he had left immediately before he was killed. When struck he was walking across Warren street having taken one or two steps from the place where he had touched the ground on leaving his car, and was between the rails of the track on which was the car by which he was struck. He had not reached or had time to reach the sidewalk of Warren street, but he had left the car on which he had been a passenger, and had begun his progress on foot across the street. We are of the opinion that he was not a passenger when the accident occurred, and that he ceased to be a passenger when he alighted upon the street from his car. The street is in no sense a passenger station, for the safety of which a street railway company is responsible. When a passenger steps from the car upon the street, he becomes a traveler upon the highway, and terminates his relations and rights as a passenger, and the railway company is not responsible to him as a carrier for the condition of the street, or for his safe passage from the car to the sidewalk. When a common carrier has the exclusive occupation of its tracks and stations, and can arrange and manage them as it sees fit, it may be properly held that persons intending to take passage upon or leave a train have the relation and rights of passengers in leaving or approaching the cars at a station. Warren v. Railroad Co., 8 Allen, 227; McKimble v. Railroad Co., 139 Mass. 542, 2 N.E. 97; Dodge v. Steamship Co., 148 Mass. 207, 214, 19 N.E. 373. But one who steps from a street railway car to the street is not upon the premises of the railway company, but upon a public place, where he has the same rights with every other occupier, and over which the company has no control. His rights are those of a traveler upon the highway, and not of a passenger.
The plaintiff, therefore, cannot recover unless she shows by affirmative evidence that the deceased was in the exercise of due diligence to avoid injury in traveling upon the street. As was said in Chaffee v. Railroad Co., 104 Mass. 108, 115, "the question of ordinary care is, in most cases, even when the facts are undisputed, a question of fact, which it is peculiarly the province of the jury to settle." But, as was also said in the same case, "if, as a matter of common knowledge and experience, the court can see that, upon all the undisputed facts, the plaintiff was not in the exercise of ordinary care, and that the injury he received was in part attributable to his want of it, the jury may be properly told, as matter of law, that he cannot recover." "If the whole evidence has no tendency to show care on the part of the person injured, but, on the contrary, shows that he was careless, it is the duty of the court to direct a verdict for the defendant." Warren v. Railroad Co., 8 Allen, 227, 230, and cases cited.
All the material evidence bearing upon the question whether the deceased was in the exercise of due diligence is stated in the bill of exceptions. In the opinion of the presiding justice, it had no tendency to show that the deceased was in the exercise of due care, and, if this view of the evidence was correct, there should be judgment on the verdict which he ordered.
The time of the accident was about half past 11 o'clock at night. The car on which the deceased...
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