Hogner v. Boston Elevated Ry. Co.

• Decision Date: 02 April 1908
• Citation: Hogner v. Boston Elevated Ry. Co., 198 Mass. 260, 84 N. E. 464 (Mass. 1908)
• Parties: HOGNER v. BOSTON ELEVATED RY. CO.
• Court: Supreme Judicial Court of Massachusetts

198 Mass. 260

84 N.E. 464

HOGNER v. BOSTON ELEVATED RY. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

April 2, 1908

COUNSEL

Edgar O. Achorn, for plaintiff.

Sughrue & Chase and Robert M. Bowen, for defendant.

OPINION

HAMMOND J.

This is an action of tort in which the plaintiff seeks to recover damages for being forcibly removed from one of the defendant's cars after he had boarded it. The declaration contains two counts, in each of which the assault is alleged to have been committed while the plaintiff was 'attempting to board * * * [the car] * * * to ride upon the same as a passenger for hire.'

As is usual in such cases the evidence as to the details was conflicting. The evidence introduced by the plaintiff tended to show that by reason of a surgical operation which had been recently performed upon his back, from the effects of which he had not fully recovered, he was somewhat infirm; that upon his signal the car stopped for him with the rear platform right in front of him; that he took hold of the 'grab handles' and got upon the lower step; that there were three or four passengers in the vestibule; that he asked one of them to let him take hold of the switch box, saying he was a sick man and needed to help himself up in that way; that they only laughed at him; that with both feet still on the lower step he asked the conductor, who was standing 'half way in the rear opening and leaning forward,' for permission to take hold of him, saying to him 'I am a sick man and have a sore back and do not dare to bend the back'; that the conductor said to him, 'You are not sick, you do not appear as a sick man,' and ordered him off; and that he the plaintiff was forcibly removed from the lower step to the ground by the conductor and motorman.

The evidence for the defendant tended to show as follows:

'That the plaintiff signaled the car at Townsend street and swung on while the car was still in motion. When the plaintiff had so swung on and was standing on the lower step, he made motions to a passenger who was standing between the controller and the step to move over, at the same time uttering some incoherent words which the conductor and passenger could not fully understand about his sick abck. He finally grabbed hold of the coat of this passenger, who had refused to move from his position, and opened two or three buttons of his coat. The conductor then asked what the trouble was and told the plaintiff to come into the car off the step. The plaintiff rode from Townsend street to Marcella street on the lower step of the car holding onto the grab irons. During this time the conductor repeatedly told the plaintiff that he 'could not ride there but must get on or get off.'

'The evidence further showed that this happening took place during the rush hours, and that the conductor offered to assist the plaintiff, but that the plaintiff repulsed all offers. Although repeatedly told that he could not ride on the step and he must either get on or off, the plaintiff paid no attention to the conductor's requests. It further appeared that there was plenty of room for him to enter the car and plenty of seats inside. The plaintiff during all the time he was on the car remained on the lower car step in violation of the rules of the company and refused to get on or off, and stood so that no one could enter or leave the car. When the car approached Marcella street the plaintiff having refused to enter the car or come off the step, the conductor gave three bells for an immediate stop and called for assistance to remove the plaintiff. The plaintiff was again asked to get off the step or get on the car, and still refused.

'The motorman of this car and the motorman of the second car behind came to the conductor's assistance and asked the plaintiff to obey the conductor's requests and avoid any trouble. The plaintiff still refused and was removed. After they got the plaintiff down into the street, they removed him to a position about in the gutter. The plaintiff grabbed hold of the conductor and struck at him with an umbrella. The car then proceeded.'

One of the questions was whether the plaintiff had become a passenger. 'One becomes a passenger on a railroad when he puts himself into the care of the railroad company to...