Duchemin v. Boston Elevated Ry. Co.

• Decision Date: 07 September 1904
• Citation: 186 Mass. 353,71 N.E. 780
• Parties: DUCHEMIN v. BOSTON ELEVATED RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

186 Mass. 353

71 N.E. 780

DUCHEMIN v. BOSTON ELEVATED RY. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

September 7, 1904

COUNSEL

Arthur

H. Russell, for plaintiff.

Choate & Hall, for defendant.

OPINION

BARKER J.

The action is for a personal injury occasioned by the fall of a trolley pole and car sign. The case stated in the declaration is that, as the car approached the plaintiff, he went toward it for the purpose of entering it, having given the motorman in control notice of his intention so to become a passenger and that as he was about to get on the car the trolley pole fell, striking a sign upon the car, and the pole and sign struck the plaintiff; he being in the exercise of due care and the defendant negligent. At the trial the testimony of the plaintiff and of one passenger on the car tended to show that when the pole and sign fell the car was stationary, and the plaintiff in the act of boarding it, having either one foot or both feet on the running board. On the other hand, the testimony of one passenger who was called as a witness by the plaintiff, and of seven other persons who were on or near the car and were called as witnesses on the part of the defendant, tended to show that when the pole and sign fell the car was not stationary, but was going slowly around a curve at a street corner, where there was a crosswalk. Of these seven the motorman testified that he did not see the plaintiff until after the fall of the pole and sign, and that the plaintiff was then standing on the crosswalk, within three or four feet of the car. The conductor testified that he saw nobody in the act of getting on; that he saw the plaintiff struck by the sign; and that, after being struck, the plaintiff was from three to five feet from the car. Two others of the defendant's witnesses, policemen of Cambridge, testified that they were together standing on the street within a few feet of the plaintiff, who was standing on the crosswalk as though waiting for the car to go by, and that he made no movement or attempt to get on the car. The other three witnesses for the defendant were passengers on the car, and testified that they saw no one attempting to get on the car. Eight witnesses in all testified that the car was in motion around the curve when the accident occurred.

The defendant requested the court to instruct the jury (1) that the plaintiff was not a passenger, and that the defendant did not owe him the degree of care owed to passengers, and (2) that the defendant was required to exercise only that degree of care towards the plaintiff which a reasonably prudent person would exercise under the same circumstances. The court instructed the jury, in substance, that a person desiring to ride upon a street car may have the rights of a passenger before he actually takes his place upon the car; that where he has signaled the motorman to stop, and the motorman has stopped to receive him, thereby making an offer to be received and an acceptance of that offer, he is entitled to the rights and protection of a passenger as he approaches that car to get upon it, at least so far as any defect in that car is concerned.

After a verdict for the plaintiff, the case is before us upon the defendant's exception to the refusal of the court to give the rulings requested, and upon an exception to the portions of the charge which stated that a person may have the rights of a passenger as he approaches a street car, and the degree of care owed to a person under those circumstances. The tenor of the parts of the charge so excepted to was as follows 'Now, gentlemen, I want to say, before I go into the evidence--to explain what I said I would explain about being a passenger. A man becomes a passenger--or at least it may be a more accurate way to say that he has the rights of a passenger--before he actually takes his place upon the car. He may do so. A man who comes to a steam railroad which has depots, when he has bought his ticket, and as he is approaching the car, may have all the rights of a passenger, although he has not yet reached the car or taken his seat upon it. And the person desiring to ride upon the street car, where he has signaled the motorman to stop, and the motorman has stopped to receive him, thereby making an offer to be received and an acceptance of that offer, he is entitled to the rights and protection of a passenger as he approaches that car to get upon it; at least so far as any defect in that car is concerned. He is within his rights and within the contract under...