Gardner v. Boston Elevated Ry. Co.

• Decision Date: 07 January 1910
• Parties: GARDNER v. BOSTON ELEVATED RY. Co. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

204 Mass. 213

90 N.E. 534

GARDNER v. BOSTON ELEVATED RY. Co. (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

January 7, 1910

COUNSEL

Jas H. Baldwin, for plaintiffs.

Fletcher Ranney and Everett B. Horn, for defendant.

OPINION

SHELDON J.

The plaintiff in the first case, hereinafter called the plaintiff, seeks to recover for personal injuries alleged to have been caused to her by the sudden starting of one of the defendant's cars, while she was stepping into it, through the negligence of the conductor. On the evidence the case was one for the jury to pass upon.

1. The defendant claims that the judge at the trial, in charging the jury upon the issue as to the defendant's negligence set the standard of its duty too high; and we are of opinion that this complaint is well founded. The judge said to the jury: 'The common carrier has a duty with reference to the passengers, which is to exercise the highest degree of care which can be exercised by human agency consistent with the operation of the road. It is not the care of ordinary prudence; it is the highest degree of care which a man can exercise with reference to running his car; and the failure of the conductor to exercise proper care is the negligence of the road. * * * It was the duty of the conductor to observe whether people were getting on or off the car when the car was stopped, and to give the passengers a reasonable time, those who were getting on the car, to get on and reach a place of reasonable safety; not that they are obliged to give them time to get to a seat, but to give them time to get to a place of reasonable safety; and if the car started without giving that time, then you consider whether that is that high degree which the law compels the common carrier to exercise; and if it was not, then the company were negligent.'

It is reasonable care under the existing circumstances that one person has the right to require of another; and that degree of care becomes increased with any increase of the apparent danger involved in its absence or with the increased power of control of one of the parties whose conduct is in question. Uggla v. West End St. Ry., 160 Mass. 351, 35 N.E 1126, 39 Am. St. Rep. 481; Cunningham v. Hall, 4 Allen, 268. A common carrier of passengers either by rail or by water has so complete a control, and the consequences of negligence on his part may be so serious that he is justly held to a very high degree of care for their safety; and accordingly it has been often said, both in this and in other jurisdictions, that he held to the exercise of the highest degree of care. But as was pointed out in Dodge v. Boston & Bangor Steamship Co., 148 Mass. 207, 217, 218, 19 N.E. 373, 2 L. R. A. 83, 12 Am. St. Rep. 541, this phrase and similar words which have been used to convey the same idea mean simply that the carrier is bound to use the utmost care consistent with the nature of his undertaking and with a due regard for all other matters that ought to be considered in conducting the business. This conductor was not bound absolutely to exercise the highest degree of care in running his car, but only the highest degree of care which was consistent with the practical performance of all his duties in seeing that the car was run safely without unreasonable delays, and so as to provide for the safety and...