Dewire v. Boston & M.R. Co.

• Decision Date: 04 January 1889
• Citation: 148 Mass. 343,19 N.E. 523
• Parties: DEWIRE v. BOSTON & M.R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

148 Mass. 343

19 N.E. 523

DEWIRE v. BOSTON & M.R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

January 4, 1889

COUNSEL

C.G. Fall, for plaintiff.

Solomon Lincoln and W.T. Badger, for defendant.

OPINION

FIELD J.

It must be taken that the defendant held out no inducement or invitation to the plaintiff to take the train at the place where he took it, but that the jury might find on the evidence that the defendant permitted passengers to take trains at this place, and that the plaintiff, in taking the train, intended to become a passenger; and it is with reference to a person who takes a train under such circumstances, and with such an intent, that the correctness of the instructions asked for must be determined. The plaintiff was not a trespasser in taking the train, and, when he had reached in safety the inside of a passenger car, then certainly, if not before, he became a passenger. Merrill v. Railroad Co., 139 Mass. 238, 1 N.E. 548. After he became a passenger we cannot distinguish his rights and duties from those of the other passengers. The injury was caused by a locomotive engine of the defendant company, which was carelessly driven by a servant of the company against the car on the platform of which the plaintiff was standing. There were no vacant seats in the car which the plaintiff first entered, and he passed towards the rear of the train through one or two cars, in search of a seat, which he did not find. "While seeking a seat he came to the front platform of the last passenger car but one, and was standing upon this platform, looking through the door or window of the car in search of a seat. While he was standing in this position, the train continuing its motion at the rate of from five to eight miles an hour," the engine struck the car checked or stopped its motion, and partially overturned it, and the plaintiff fell backwards, and was injured.

The instructions given to the jury upon the principal question were, in substance, that, if the plaintiff was upon the platform of the car intending to ride there, he could not recover; but if he was there "in the exercise of reasonable promptness, in attempting to secure a seat," and "his stop there was a reasonable one," and "he was not there for the purpose of riding," he might recover.

In Stewart v. Railroad Co., 146 Mass. 605, 16 N.E. 466 it is said that, "in going from one car to another of a rapidly moving train, merely for his own convenience, the plaintiff took upon himself the risk of all accidents not arising from any negligence of the defendant." In the case at...