Franz v. Holyoke St. Ry. Co.

• Citation: 239 Mass. 565,132 N.E. 270
• Parties: FRANZ v. HOLYOKE ST. RY. CO.
• Decision Date: 11 October 1921
• Court: United States State Supreme Judicial Court of Massachusetts

239 Mass. 565

132 N.E. 270

FRANZ

v.HOLYOKE ST. RY. CO.

Supreme Judicial Court of Massachusetts, Hampden.

Oct. 11, 1921.

Exceptions from Superior Court, Hampden County; Henry A. King, Judge.

Action by Raymond Franz against the Holyoke Street Railway Company. There was a directed verdict for defendant, and plaintiff brings exceptions. Exceptions sustained.

Ely & Ely and William C. Giles, all of Springfield, for plaintiff.

Brooks, Kirby, Keedy & Brooks, of Springfield, for defendant.

CROSBY, J.

This is an action to recover compensation for personal injuries received by the plaintiff while boarding a car of the defendant on Bridge street, in that part of the city of Chicopee known as Chicopee Falls. The car had come from Holyoke and stopped at a regular stopping place, for the purpose of receiving passengers on its return trip. The plaintiff, who lived in Holyoke, testified that he, with a large number of other men, waited for the car and when it stopped they all ran for it; that there were some men who boarded the car ahead of him; that

‘When he was to get on the car he held onto one of those bars and stepped one foot on the step and the other men behind him pushed him in the car. There were a half a dozen or more who pushed against him. When he was able to get on the car they were all right onto him. * * * He held onto the bar on the car, which was a closed car, and the crowd pushed in. His wrist gave way and he fell right down. He struck two steps, the bottom step and the top step right on his left side. When he fell down the men were still crowding on the car. * * * During the four months that he worked at the plant the defendant sometimes sent one car and sometimes two. On 20 or 30 times during that period they sent one car. On those occasions there were about 200 or 250 men waited for it. They would stand until the car came and then all ran for it. The crowd stood by the car trying to jump on; he was in the crowd, too. During all these times the men were pushing. They did the same thing on the day that he was hurt. He had seen men knocked down sometimes in these previous rushes on the car.’

Other evidence tended to show that at the time the plaintiff was injured there was only the ordinary pushing and crowding which usually exists when a large number of persons are hurrying to board an electric car. MacGilvray v. Boston Elevated Railway, 229 Mass. 65, 118 N. E. 166, 4 A. L. R. 283.

The conductor testified that his car would seat 45 persons. It is plain that, if the plaintiff's testimony were believed, the jury could have found that at the time he was injured there was more than the customary crowding on the part of those present; that their conduct was boisterous, violent, and disorderly; and that, in view of the testimony as to what had occurred at other times at the same place, the defendant should have foreseen what happened on the day in question and taken some steps to guard its passengers. Kuhlen v. Boston & Northern Street Railway, 193 Mass. 341, 79 N. E. 815,7 L. R. A. (N. S.) 729, 118 Am. St. Rep. 516;Morse v. Newton Street Railway, 213 Mass. 595, 100 N. E. 1007;Bryant v. Boston Elevated Railway, 232 Mass. 549, 122 N. E. 744. The evidence showed that neither the conductor nor motorman, or any other person in the employ of the defendant, did anything to protect the plaintiff or other persons who were attempting to board the car.

The question whether the plaintiff was in the exercise of due care plainly was for the jury, and upon the evidence disclosed by the record...