Daley v. Boston, R.B.&L.R. Co.

• Decision Date: 07 March 1922
• Parties: DALEY v. BOSTON, R. B. & L. R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

241 Mass. 78

134 N.E. 376

DALEY

v.BOSTON, R. B. & L. R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

March 7, 1922.

Exceptions from Superior Court, Suffolk County; Robert F. Raymond, Judge.

Action of tort by Joseph Daley, by this next friend, against the Boston, Revere Beach & Lynn Railroad Company, for injuries sustained while riding on the step of a car of defendant's train. A verdict was directed for defendant, and plaintiff brings exceptions. Exceptions overruled.

Wendell P. Murray, of Boston, for plaintiff.

Thomas Kelly, of Boston, for defendant.

CARROLL, J.

This is an action of tort for injuries sustained by the plaintiff, a passenger on the defendant's steam railroad, while riding on the steps of the forward end of the last car on the train. After the train left Orient Heights, the plaintiff was struck by a dwarf signal beside the track. The nearest part of this signal was 7 1/2 inches from the outside of the car and 6 1/4 inches from the outside edge of the lowest step. He testified that the car was crowded and that 20 or 25 people were on the platform; that he was seated on the second step of the car and was smoking, and at the time was crossing his right leg over the left; that if he stood up no part of his body would have extended beyond the line of the car.

The plaintiff, by sitting down on the steps of the platform of a moving car on a steam railroad, placed himself in a position of great danger; he was clearly negligent in occupying such a position that his body would be so exposed as to come in contact with the signal. On the evidence there was nothing for the jury to pass on and the judge was right in directing a verdict for the defendant. In Todd v. Old Colony & Fall River Railroad, 3 Allen, 18, 80 Am. Dec. 49, a passenger riding in a car on a steam railroad permitted his arm to be out of the window, and he was not allowed to recover. It was said in Foley v. Boston & Maine Railroad, 193 Mass. 332, at page 335, 79 N. E. 765, 766 (7 L. R. A. [N. S.] 1076):

‘To be either upon the platform of a car or just within its threshold on the way to and in search of a permanent place of safety within a car is quite different from voluntarily taking one's stand for the journey barely inside an open door.’

See in this connection Hickey v. Boston & Lowell Railroad, 14 Allen, 429;Fletcher v. Boston & Maine Railroad, 187 Mass. 463, 73 N. E. 552,105 Am. St. Rep. 414;Renaud v. New York, New Haven & Hartford Railroad, 210 Mass. 553, 555, 97 N. E. 98,38...