Crowley v. Boston Elevated Ry. Co.
| Decision Date | 07 January 1910 |
| Citation | 204 Mass. 241,90 N.E. 532 |
| Parties | CROWLEY v. BOSTON ELEVATED RY. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
This was an action of tort for injuries to a passenger riding on the platform of an elevated car forming a part of a train occasioned by the negligent failure to have a chain stretched across the open space on the platform and so fastened as to prevent persons riding on the platform from being thrown therefrom, and because of the sudden increase of speed of the car, causing the passenger to fall from the platform. A rule of the company provided:
McManus & McCaig, for plaintiff.
Wm. G Thompson and Sanford H. E. Freund, for defendant.
The defendant does not claim that the plaintiff's injury was due to any negligence of his own, or that he was bound by the rule of the defendant formerly in force forbidding passengers to ride on the platforms. That rule had been practically abandoned by the defendant. Sweetland v. Lynn & Boston R. R., 177 Mass. 574, 59 N.E. 443, 51 L. R. A. 783; Feneff v. B. & M. R. R., 196 Mass. 575, 577, 82 N.E. 705. The only questions presented are whether the rule of the defendant as to platform chains was properly admitted; whether Reardon should have been allowed to testify to Benjamin's statements as to the purpose and necessity of keeping those chains fastened; and whether upon all the competent evidence the jury would have been warranted in finding for the plaintiff.
1. We are of opinion that the rule was rightly admitted in evidence. Stevens v. Boston Elev. Ry., 184 Mass. 476, 69 N.E. 338; Burns v. Worcester Cons. St. Ry., 193 Mass. 63, 78 N.E. 740. The rule was in force at this time. The plaintiff's case was not all in when the rule was offered, and it could not have been said that the rule would have no bearing upon the issues. It constituted one of the means relied upon by the plaintiff to show negligence in the defendant, and the circumstances then in evidence indicated that it might become material for that purpose. Its legal effect in connection with the other evidence must be considered hereafter.
2. We are of opinion that Reardon's testimony of Benjamin's statements as to the purpose of the chains and the necessity of keeping them fastened was rightly rejected. The offer was not to show that these statements were instructions to Reardon as to his duties, but simply that they were statements repeatedly made by Benjamin apparently merely in general conversation. No employe can bind his employer by such bare statements, unless he has been made its agent for that purpose. Conklin v. Consolidated Ry., 196 Mass. 302, 306, 82 N.E. 23; Wellington v. Boston & Maine R. R., 158 Mass. 185, 186. 33 N.E. 393; Procter v. Old Colony R. R., 154 Mass. 251, 28 N.E. 13; Boston & Maine R. R. v. Ordway, 140 Mass. 510, 5 N.E. 627; Fogg v. Pew, 10 Gray, 409, 71 Am. Dec. 662. We need not consider whether this evidence would have been admissible if Benjamin's, statements had been made in the course and as a part of instructions given in the performance of his duty to Reardon after July 10, 1905, when the rule which was put in evidence was issued.
3. The only negligence of the defendant relied on by the plaintiff was the act of its brakeman in taking down the chain which went across the open space of the platform, and not replacing it, followed by the starting and lurching of the car. We are of opinion that the defendant's servants are not shown to have been negligent in either of these respects.
It is undisputed that the train had nearly reached the Sullivan Square station, if indeed the forward car had not fully done so, and had properly stopped with some of its cars, including that upon the platform of which the plaintiff was standing upon the curve just outside the station, waiting for the...
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