Fitzgerald v. Boston Elevated Ry. Co.

• Decision Date: 29 January 1931
• Parties: FITZGERALD v. BOSTON ELEVATED RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

274 Mass. 287

174 N.E. 490

FITZGERALD

v.BOSTON ELEVATED RY. CO.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 29, 1931.

Exceptions from Superior Court, Middlesex County; J. D. McLaughlin, Judge.

Action by Frances E. Fitzgerald against the Boston Elevated Railway Company. Verdict for plaintiff, and defendant brings exceptions.

Exceptions overruled.

D. L. Smith, of Boston, for plaintiff.

C. S. Walkup, Jr., of Boston, for defendant.

FIELD, J.

This is an action of tort to recover damages for personal injuries. There was evidence that one of the defendant's cars, which had just come from the car barn, had stopped at Harvard square, Cambridge, to take on passengers, and was standing there with its rear door open and the lower step down, and that the plaintiff, a teacher on her way to school, entering this car with her hand on the bar, was stepping from the lower step to the rear platform of the car when the step folded up, threw her upon the platform and injured her. There was no direct evidence of the cause of the step's folding up. There was evidence of inspection of the car by the defendant and also evidence as to the mechanism by which the opening and closing of the doors and the raising and lowering of the steps were controlled by the operator of the car. Verdict was for the plaintiff. The case is before us on the defendant's exceptions to the denial of its motion for a directed verdict, and to the judge's charge that if the accident happened as the witnesses testified, the steps of the car being ‘wholly * * * under the control of the company * * * and an occurrence of this sort being so contrary to common experience * * * the jury could infer * * * the accident happened in consequence of the failure of the company to exercise that high degree of care which it was bound to exercise, to provide steps which were reasonably safe’ or ‘some failure on the part of the operator in exercisingthat high degree of care which he was bound to exercise in the operation of the steps.’

[2] The judge's charge stated the law correctly and the motion for a directed verdict was denied rightly. On the evidence, if believed, the plaintiff was a passenger. Franz v. Holyoke Street Railway, 239 Mass. 565, 132 N. E. 270;Fournier v. Holyoke Street Railway, 258 Mass. 257, 154 N. E. 546. The defendant, as a common carrier, owed to a passenger the duty to exercise reasonable care under the circumstances (Thayer v. Old Colony Street Railway, 214 Mass. 234, 236, 101 N. E. 368, 44 L. R. A. [N. S.] 1125, Ann. Cas. 1914B, 865, and cases cited), to furnish cars, including steps, which were reasonably safe (Marshall v. Boston & Worcester Street Railway, 195 Mass. 284, 285-287, 81 N. E. 195;Coleman v. Boston Elevated Railway, 249 Mass. 155, 158, 143 N. E. 819), and to operate cars and steps safely (Gardner v. Boston Elevated Railway, 204 Mass. 213, 90 N. E. 534). Because of the nature of the carrier's undertaking and the relation between the carrier and its passengers, reasonable care under the circumstances is a high degree of care, ‘the utmost caution which is compatible with the conduct of the business, according to the requirements of the public, as to rapidity, expense and comfort.’ Donahoe v. Boston Elevated Railway, 214 Mass. 70, 72, 100 N. E. 1033, 1034. See, also, Gardner v. Boston Elevated Railway, 204 Mass. 213, 216, 217, 90 N. E. 534, and cases cited; Bilodeau v. Fitchburg & Leominster Street Railway, 236 Mass. 526, 533, 128 N. E. 872.

[4] This was a proper case for the application of the doctrine res ipsa loquitur. The jury, relying on common experience and the defendant's control of the use and inspection of the car, could have inferred from the occurrence of...