Jackson v. Old Colony St. Ry. Co.

• Decision Date: 20 October 1910
• Citation: 206 Mass. 477,92 N.E. 725
• Parties: JACKSON v. OLD COLONY ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

206 Mass. 477

92 N.E. 725

JACKSON v. OLD COLONY ST. RY. CO.

Supreme Judicial Court of Massachusetts, Plymouth.

October 20, 1910

Oct 20, 1910.

COUNSEL

C. B Snow, for plaintiff.

A. P. French, for defendant.

OPINION

BRALEY J.

The plaintiff, having entered the car and paid his fare, became a passenger, and when the evidence closed it was uncontroverted that he had been assaulted by the conductor, although the place of the assault was for the jury to decide, upon conflicting evidence.

During the first part of the journey, they engaged in a verbal quarrel, which resulted in ill feeling between them; but there was no testimony that, during the last half, the dispute was renewed, or that the plaintiff was told that if upon request he did not depart he would be put off when the car stopped at the turnout, where the conductor was to set a switch and display a signal light. If, as the defendant contended, and its witnesses testified, the jury were satisfied that the encounter took place after the conductor returned from the switch, they could find that the plaintiff, having passed from the car, had become a traveler, and the defendant would not be responsible for an injury then inflicted out of a spirit of vindictiveness for what had taken place on the car, or by anger aroused by the insult with which, as the conductor testified, the plaintiff then greeted him. Creamer v. West End St. Ry., 156 Mass. 320, 31 N.E. 391, 16 L. R. A. 490, 32 Am. St. Rep. 456; McGilvray v. West End St. Ry., 164 Mass. 122, 41 N.E. 116; Conroy v. Boston Elevated Ry., 188 Mass. 411, 74 N.E. 672.

The plaintiff, however, contended that, upon arrival at the turnout, he had reached the end of his journey and prepared to leave, and the jury would have been warranted in finding upon his evidence that as he stood, with one foot on the platform and the other on the step, and while in the act of descending, the conductor, who was standing on the ground at the foot of the steps, seized, pulled him off, and knocked him down. If the turnout was his destination, or if, in response to the conductor's order, which the plaintiff said was given, he was leaving the car, as the evidence shows, without making any resistance, and in an orderly manner, the use of violence upon his person was unjustifiable. St. John v. Eastern Railroad, 1 Allen, 544. It is only where a passenger refuses to comply with a lawful order that, if he resists, reasonable force may be used to eject him. Coleman v. New York, New Heven & Hartford Railroad, 106 Mass. 160; Conklin v. Consolidated Railway, 196 Mass. 302, 82 N.E. 23. And if he uses violence on his part beyond what is necessary to prevent blows, or to protect himself from excessive force, the burden is on him to prove that his illegal acts did not contribute to the injury. Coleman v. New York, New Haven & Hartford Railroad, 106 Mass. 160. The declaration, which is for an assault and battery upon the plaintiff, alleges that the assault was committed by the defendant's conductor while the plaintiff was a passenger, and the answer, after a denial of these allegations, raised by further averments the issues that, if an assault was committed, the conductor at the time was not acting within the scope of his employment, or, if he was so acting, the force used was not excessive, but justifiable in self-defense, to repel an attack by the plaintiff. But there is no evidence to which this last averment is applicable. It appears that neither in the car nor while passing from the car to the ground did the plaintiff threaten him with bodily harm, or lay hands upon the person of the conductor.

If the defendant intended to rely upon the defense that the plaintiff was rightly ejected with the use of no more force than was necessary, it should have pleaded the avoidance. It was not available under the present answer. Hathaway v. Hatchard, 160 Mass. 296, 35 N.E. 857; Dixon v. New England Railroad, 179 Mass. 242, 249, 60 N.E. 581. The conductor, if attacked during transportation, undoubtedly would have been justified in using sufficient force to repel the assault and protect himself, and this defense would be available in the defendant's behalf when sued for his acts. New Orleans & Northeastern Railroad v. Jopes, 142 U.S. 18, 12 S.Ct. 109, 35 L.Ed. 919. It is plain upon the evidence, as it stood at the close of the trial, that a verdict for the defendant could not have been ordered, and, apparently with the consent of the parties, the judge submitted to the jury three questions, the answers to which it was assumed would be decisive of the defendant's liability. The first question, however, was not answered; and the answer to the third question simply having negatived any contention of the plaintiff that an attempt was made to eject him as he was leaving the car, the further issue, covered by the first question, whether he was assaulted before he ceased to be a passenger, was left undecided.

But if there was evidence that the assault took place on the car, the defendant, without any objection by the plaintiff that the defense was not open under the pleadings, took the position that a failure to answer the first question became immaterial, since the jury having found, in answer to the second question, that the assault was provoked by the plaintiff, it was not liable even if the contract of carriage had not been terminated.

The evidence leaves no doubt, and the defendant concedes, that the only provocation during transportation was the offensive language which the plaintiff addressed to the conductor, and it also should be borne in mind that the jury could find that not only was the battery disproportionate to the insult given, but the assault was not delivered at the time of the alleged provocation, if the assailant waited until the plaintiff was leaving the car. In other words, the defense is that, because the plaintiff, while a passenger, insulted the conductor by the use of abusive language, he contributed to his own harm, or invited the punishment inflicted upon him, and thereafter during transportation the defendant was discharged from any further duty to protect him from an assault by its servant. If the plaintiff's words absolved the defendant, then where a passenger purposely behaves in an insulting manner toward a servant, the passenger no longer can claim the protection of the carrier, but is put in jeopardy of a retaliatory assault at any time before transportation has ended, if such be the pleasure of the servant. He may be seriously injured or crippled for life, but has no remedy except to sue the servant, while, in the meantime, all other duties arising out of the contract must be reasonably performed by the carrier. By the plaintiff's contract, the duty rested upon the defendant of affording him full protection from unlawful violence at the hands of the conductor, to whom, as its representative, the management of the car had been intrusted. Ramsden v. Boston & Albany Railroad, 104 Mass. 117, 121, 6 Am. Rep. 200. In Bryant v. Rich, 106 Mass. 180, 190 (8 Am. Rep. 311), Chief Justice Chapman, in speaking of this duty, said: 'For the violation of such a contract, either by force or negligence, the plaintiff may bring an action of tort or an action of contract.' And in the case of Goddard v. Grand Trunk Railway, 57 Me. 202, 213, 2 Am. Rep. 39, which was referred to in the opinion with approval it was said: 'The carrier's obligation is to carry his passenger safely and properly and to treat him respectfully, and if he intrusts the performance of this duty to his servants, the law holds him responsible for the manner in which they execute the trust. The law seems to be now well settled that the carrier is obliged to protect his passengers from violence and insult, from whatever source arising. * * * He must not only protect his passenger against the violence and insults of strangers and co-passengers, but a fortiori from violence and insults of his own servants. If this duty to the passenger is not performed, if its protection is not furnished, but on the contrary the passenger is assaulted and insulted, through the negligence or the willful misconduct of the carrier's servant, the carrier is necessarily responsible.'

It is to be presumed that the defendant did not authorize the acts complained of, and no question of the conductor's authority is involved. The plaintiff's contract was with the defendant, whose liability for the consequences which could have been found to have followed from neglect of its duty to protect the...