Hudson v. Lynn & B.R. Co.
| Decision Date | 28 February 1901 |
| Citation | 59 N.E. 647,178 Mass. 64 |
| Parties | HUDSON v. LYNN & B. R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Frank D. Allen, for plaintiff.
Henry F. Hurlburt, for defendant.
The evidence tended to show that on the night of September 7 1898, Pope, the plaintiff's intestate, took one of the defendant's out-bound electric cars, in the Boston subway, paid a single fare, saying, as he paid, 'When I pay my next fare I shall want a transfer to Upper Swampscot Line,' and was carried as a passenger towards Lynn. His second fare became payable as the car was passing over the Lynn marshes. Shortly after paying the first fare, he began to act in a manner which would justify the conclusion that he was intoxicated, and before the car reached the point where the second fare was to be paid he was in a sleep or stupor which the conductor had made several ineffectual attempts to break. When the conductor came in to collect the second fares, Pope was sitting up asleep. The conductor first took the fares of the other passengers then came to Pope, and shook him several times, and tried to wake him up, but he made no response. After this shaking had continued for some time, and Pope did not awaken, the conductor stopped the car, and the motorman came in, and asked what the matter was. The conductor replied: 'No matter what he is doing, we will put him off here in the mud; the next time he will know about paying his fare.' They then lifted him, carried him out of the car, left him in the road, and the car went on its way. The night was dark and rainy. The road in which he was left was not lighted, and was occupied in part by the defendant's track, over which its cars were passing in each direction at intervals of 15 minutes. Teams were accustomed to use the road at night. There were no sidewalks. The road was through the Lynn marshes, and there were no dwellings or other buildings or any shelter in the vicinity. Further along towards Lynn, three minutes' run of the car distant, were dwellings and shelter. About half an hour after Pope had been so taken from the car he was on the ground upon the railroad track, and was run over and killed by one of the defendant's cars going towards Boston, and run by the same conductor and motorman who ejected Pope. There was testimony from the motorman of the car which followed that from which Pope was ejected that when this next car passed the locality where Pope had been left the motorman saw a man standing alone against the fence, between it and the track, about 15 minutes after Pope had been ejected. There was no other testimony on the subject of how Pope came to be on the ground on the track when struck by the car. The action is brought by his administrator, and the declaration has counts, under St. 1886, c. 140, to recover for loss of life, and also a count at common law for an assault alleged to have been committed in ejecting him from the car. Upon the evidence introduced by the plaintiff, a...
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