Gargan v. West End St. Ry. Co.

• Decision Date: 17 May 1900
• Citation: Gargan v. West End St. Ry. Co., 176 Mass. 106, 57 N.E. 217 (Mass. 1900)
• Parties: GARGAN v. WEST END ST. RY. CO.
• Court: Supreme Judicial Court of Massachusetts

176 Mass. 106

57 N.E. 217

GARGAN v. WEST END ST. RY. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 17, 1900

COUNSEL

Gargan &

Keating, for plaintiff.

M. F Dickinson, Jr., and Walter B. Farr, for defendant.

OPINION

BARKER J.

The car upon which the plaintiff rode from Boston stopped about opposite her dwelling to allow passengers to leave. She left by the rear door. Her house was upon the right as she passed from the door. The gate upon that side was up, and she descended from the platform by the steps leading to the left so that when she reached the street her back was towards her house. There was a cross walk, about seven feet wide, partly occupied by the rear end of the car, from which at the time a fender projected about two feet. Enough of the cross walk was left unoccupied for her passage to the sidewalk of the side of the street where her house was. The hour was about 6 o'clock of an evening in the middle of December. There were street lights, not very near, and the locality was quite dark, although several witnesses testified that the fender was visible to them. Upon reaching the ground, the plaintiff at once turned, and began to walk towards the other side of the street upon the cross walk. In so doing she went so near the end of the car that she struck against the projecting fender, and fell. She did not see the fender, and did not know that it projected beyond the end of the car. The fenders of a street car are attached to both ends of the car, but are usually so adjusted that they project only from the front end. This fender had in some way become so disarranged that it projected from the rear end of the car without the knowledge of the defendant's servants who were in control of the car, and contrary to the intention of the defendant. It is admitted that when the plaintiff left the car she ceased to be a passenger of the defendant. See Creamer v. Railway Co., 156 Mass. 320, 31 N.E. 391, 16 L. R. A. 490; Bigelow v. Railway Co., 161 Mass. 393, 395, 37 N.E 367. When she began to walk towards her house, she was merely a traveler upon the highway. The respective rights and duties of the plaintiff and the defendant were not those of a passenger and a common carrier, but those of a pedestrian crossing a public street in which was a street-railway track then occupied by a street car, and of a street-railway corporation lawfully using the same street in its traffic. From the time when she left the car until she was hurt the car remained stationary. The condition of things which existed at the time when she reached the street and turned to walk home was in no way changed by the defendant nor were her actions in the least controlled or influenced by it. It cannot be contended that the presence of the car in the street, or its stoppage to allow passengers to leave, was unlawful; nor is it claimed that the stoppage was too long, or that the plaintiff expected that the car would move on to allow her to cross the street. The only cause of the accident was the plaintiff's own act in walking against the fender, and the contention is that the presence of the fender projecting from the rear end of the car was such a negligent occupation of the highway by the defendant as to make it liable for the plaintiff's injury. That the collision was the plaintiff's own act distinguishes the case from the common one in which two bodies, each lawfully present in a highway, and each in motion, come into collision. Instances in which a traveler collides with or is injured by a stationary vehicle or other object lawfully placed in a highway by some other person or traveler are not very rare. One of our early cases declared the right of the owner of lands abutting on a highway to erect buildings and fences on the street line, and to place in them doors and gates which would swing over the street...