Holton v. Boston Elevated Ry. Co.

• Decision Date: 26 May 1939
• Citation: 21 N.E.2d 251,303 Mass. 242
• Parties: HOLTON v. BOSTON ELEVATED RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

303 Mass. 242

21 N.E.2d 251

HOLTON

v.BOSTON ELEVATED RY. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 26, 1939.

Report from Superior Court, Suffolk County; Walsh, Judge.

Action for damages for injuries suffered while alighting from street car by Olga M. Holton against the Boston Elevated Railway Company. Verdict for plaintiff. The trial judge reserved leave, entered a verdict for the defendant, and reported the case to Supreme Judicial Court.

Judgment on the verdict returned by the jury.J. Kruger and A. S. Gordon, both of Boston, for plaintiff.

Joseph Wentworth and J. M. Hall, both of Boston, for defendant.

RONAN, Justice.

The plaintiff recovered a verdict for personal injuries on account of being pushed off a car by an intoxicated passenger. The judge reserved leave, entered a verdict for the defendant, and reported the case to this court.

Considering the evidence in the light most favorable to the plaintiff, a jury could find the following facts: The plaintiff became a passenger upon one of the defendant's street cars, which was manned by a single employee. After the car had proceeded a short distance, it stopped at a regular stopping place. The plaintiff noticed that it had stopped for an unnecessarily long period and she saw an intoxicated man, who was talking in a loud voice and swearing, entering the car and assisting himself by taking hold of the bar at the front end. He was unsteady upon his feet, and after bumping into a post at the rear of the operator, he proceeded along the aisle, ‘hollering and swearing in a loud voice,’ bumping into passengers seated on both sides of the aisle, and sat in the seat directly behind the plaintiff. This seat was about fifteen feet from the front vestibule. The operator was looking toward this man as he went along the aisle, and did not start the car until the man was seated. This passenger rubbed the back of the seat occupied by the plaintiff and his hand came in contact with the plaintiff's back. The car reached the terminal in ten minutes after he had entered it, but during that time he continued to talk and swear in a loud voice. When the car arrived at the terminal, the plaintiff stood up and started to leave, when this passenger pushed her. She told him to stop pushing. He proceeded directly behind her as she was going toward the front door. He again pushed her and she again requested him to stop. As she was reaching for the bar in the center of the door to assist her in alighting, this intoxicated passenger pushed her, throwing her from the vestibule of the car onto the station platform; she landed in a sitting position, and her left leg, which was buckled up beneath her, was broken.

It is settled by our decisions that a common carrier is bound to use the same degree of vigilance and care in guarding and protecting a passenger from all dangers and perils that might ordinarily and naturally be encountered during his transportation, including any annoyance, violence or harm that may reasonably be expected from other passengers, as is required in the maintenance of its tracks, cars and equipment, in the selection, regulation and supervision of its employees, and in the conduct, control and management of its business. Our law recognizes but a single uniform standard of care that a carrier in all the various aspects of its business is required to exercise toward its passengers. Simmons v. New Bedford, Vineyard & Nantucket Steamboat Co., 97 Mass. 361, 93 Am.Dec. 99;Dodge v. Boston & Bangor Steamship Co., 148 Mass. 207, 218, 19 N.E. 373,2 L.R.A. 83, 12 Am.St.Rep. 541;Nichols v. Lynn & Boston Railroad Co., 168 Mass. 528, 47 N.E. 427;Kuhlen v. Boston & Northern Street Railway Co., 193 Mass. 341, 79 N.E. 815, 7 L.R.A.,N.S., 729, 118 Am.St.Rep. 516;Beverley v. Boston Elevated Railway Co., 194 Mass. 450, 80 N.E. 507;Glennen v. Boston Elevated Railway Co., 207 Mass. 497, 93 N.E. 700, 32 L.R.A.,N.S., 470.

In the performance of its undertaking with the plaintiff, the defendant was bound to exercise reasonable care according to the nature of its contract with her. A passenger has no control over the operation of the cars, the action of the employees, or the conduct of the business. There is little that a passenger can do for his own safety in using the defendant's instrumentalities, but he must rely to a very great extent upon the care and vigilance of the carrier. In view of the control possessed by the carrier and the serious consequences that might be incurred if the carrier should be derelict in the full performance of its duties, the care that it must exercise is reasonable care in such circumstances, which may properly be referred to as the utmost care consistent with its undertaking in connection with all other matters that ought to be considered in the operation of its business. It has sometimes been spoken of as the highest degree of care compatible with the practical performance of all of its duties in accordance with the demands of the public as to accommodations, convenience, comfort, rapidity and expense. 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;Gardner v. Boston Elevated Railway Co., 204 Mass. 213, 216, 217, 90 N.E. 534;Donahoe v. Boston Elevated Railway Co., 214 Mass. 70, 100 N.E. 1033;Bilodeau v. Fitchburg & Leminster Street Railway Co., 236 Mass. 526, 128 N.E. 872;Fitzgerald v. Boston Elevated Railway Co., 274 Mass. 287, 174 N.E. 490;Turner v. Berkshire Street Railway Co., 292 Mass. 313, 198, N.E. 178. The defendant's liability depends upon whether the plaintiff has shown that the defendant's employee, in permitting the intoxicated person to become and remain a passenger up to the time of the plaintiff's injury without doing anything to prevent its occurrence, did not exercise the standard of care that has been mentioned. Of course, the defendant was not an insurer of the plaintiff's safety, and the mere occurrence of such an accident does not establish the defendant's liability. Joy v. Winnisimmet Co., 114 Mass. 63;Jacobs v. West End Street Railway Co., 178 Mass. 116, 59 N.E. 639;McCumber v. Boston Elevated Railway Co., 207 Mass. 559, 563, 93 N.E. 698, 32 L.R.A.,N.S. 475.

The defendant was a common carrier and every one who presented himself in proper condition was entitled to use the defendant's facilities upon the payment of the usual charge. ‘The general rule that a common carrier is bound to accept anybody and everybody who presents himself for transportation and pays the regular fare, has its limitations. A common carrier is bound to care for all who have become its passengers. For that reason not only is it not bound to accept, but it is under obligation to refuse to accept as a passenger * * * one who because of intoxication or for any other reason would be offensive to other passengers. Vinton v. Middlesex Railroad Co., 11 Allen 304,87 Am.Dec. 714;Murphy v. Union Railway Co., 118 Mass. 228;Hudson v. Lynn & Boston Railroad Co., 178 Mass. 64, 59 N.E. 647.’ Connors v. Cunard Steamship Co., 204 Mass. 310, 315, 90 N.E. 601, 603, 26 L.R.A.,N.S., 171, 134 Am.St.Rep. 662,17 Ann.Cas. 1051. The...