Kuhlen v. Boston & N. St. Ry. Co.

• Decision Date: 01 January 1907
• Citation: 193 Mass. 341,79 N.E. 815
• Parties: KUHLEN v. BOSTON & N. ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

193 Mass. 341

79 N.E. 815

KUHLEN v. BOSTON & N. ST. RY. CO.

Supreme Judicial Court of Massachusetts, Essex.

January 1, 1907

This was an action for injuries received by the plaintiff because of the pushing of a crowd while she was attempting to enter the rear vestibule of a car of the defendant at the subway station in Scollay Square, Boston. At the close of the testimony defendant requested the court to give the following instructions, which were refused:

'(1) On all the evidence the plaintiff is not entitled to recover.

'(2) The plaintiff was not in the exercise of due care.

'(3) There is no evidence of negligence of the defendant, its servants or agents.

'(4) The plaintiff assumed the risk of being jostled and all danger and inconvenience incident thereto when she entered into the crowd endeavoring to get upon the car.

'(5) In choosing to travel on a street car when the same was crowded, the plaintiff assumed the risk of injury incident to such crowding.

'(7) If it is not practicable for the defendant to carry on its business without the crowding of its platforms and cars at certain hours of the day, it is not negligence on the part of the defendant to fail to employ a large force of men at those hours to prevent jostling and crowding at the entrance to the cars.'

COUNSEL

Frank D. Allen and Lyman K. Clark, for plaintiff.

Starr Parsons and H. Ashley Bowen, for defendant.

OPINION

SHELDON J.

It is the duty of the defendant, as a carrier of passengers for hire, to use the highest degree of care consistent with the nature and extent of its business, not only to provide safe and suitable vehicles for their carriage, but to maintain all such reasonable arrangements for control and supervision both of the passengers and of its own servants as prudence would dictate to guard its passengers, while they occupy that relation, against all dangers that are naturally and according to the usual course of things to be expected. It is bound to select and employ a sufficient number of competent servants to meet any exigency which, in the exercise of that high degree of vigilance and care to which it is held, it ought reasonably to have anticipated. This is the unvarying doctrine of our own decisions. Treat v. Boston & Lowell Railroad, 131 Mass. 373; Commonwealth v. Coburn, 132 Mass. 555; Bryant v. Rich, 106 Mass. 180, 8 Am. Rep. 311; Dodge v. Boston & Bangor Steamship Co., 148 Mass. 210, 19 N.E. 373, 2 L. R. A. 83, 12 Am. St. Rep. 541. And its duty to use all proper means and precautions to protect its passengers against injuries caused by the misconduct of other passengers, such as under the circumstances might have been anticipated and could have been guarded against, is no less stringent than the obligation to prevent misconduct or negligence on the part of its own servants. Simmons v. New Bedford, Vineyard & Nantucket Steamboat Co., 97 Mass. 361, 93 Am. Dec. 99; Nichols v. Lynn & Boston Railroad, 168 Mass. 528, 47 N.E. 427. 'There is no doubt of the duty of a railroad company to use all such means and precautions as are reasonably practicable for the protection and safety of its passengers, not only from the misconduct of its agents and servants but also of other passengers and of other persons who are not passengers.' Allen, J., in Brooks v. Old Colony & Newport Railroad, 168 Mass. 164, 165, 46 N.E. 566. In United Railways v. Deane, 93 Md. 619, 49 A. 923, 54 L. R. A. 942, 86 Am. St. Rep. 453, it was held in an elaborate opinion that a passenger on a street railway car could hold the railway company liable for an assault committed upon him by a drunken and disorderly passenger who had once been put off the car but afterwards had been allowed to get on again and ride without hindrance; and this upon the general ground that when the servants of a carrier know or have the means of knowing that a disorderly passenger is likely to commit an assault, it is their duty to eject him, as in Vinton v. Middlesex Railroad, 11 Allen, 304, 87 Am. Dec. 714, and their employer is liable for their neglect of this duty if it results in injury to another passenger. McSherry, C.J., said in this case: 'It is just as incumbent upon a carrier to protect all his passengers from assault by a fellow passenger when his servants have knowledge or the means of knowing that an assault on some one is imminent, and when they have time and means to avert it, as it is to protect all his passengers from injuries likely to result from defective means or methods of transportation.' The same general doctrine has been maintained in other jurisdictions, so far as we are aware without exceptions. Muhlhause v. Monongahela Street Railway, 201 Pa. 237, 50 A. 937; Pittsburg v. Connellsville Railroad v. Pillow, 76 Pa. 510, 18 Am. Rep. 424; McGearty v. Manhattan Railway, 15 A.D. 2, 43 N.Y.S. 1086; Pittsburgh, Ft. Wayne & Chicago Railroad v. Hinds, 53 Pa. 512, 91 Am. Dec. 224; Flint v. Norwich & New York Transportation Co., 34 Conn. 554; Id., 6 Blatchf. 158, Fed. Cas. No. 4,873; Id., 7 Blatchf. 536, Fed. Cas. No. 4,874; Id., 13 Wall. (U. S.) 3, 20 L.Ed. 556; New Orleans, St. Louis & Chicago Railroad v. Burke, 53 Miss. 200, 24 Am. Rep. 689. Other cases bearing on the same subject are cited by Loring, J., in Jacobs v. West End Street Railway, 178 Mass. 116, 118, 59 N.E. 639. The cases of Thomson v. Manhattan Railway, 75 Hun, 548, 27 N.Y.S. 608, Putnam v. Broadway & Seventh Avenue Railroad, 55 N.Y. 108, 14 Am. Rep. 190, Ellinger v. Philadelphia, Wilmington & Baltimore Railroad, 153 Pa. 213, 25 A. 1132, 34 Am. St. Rep. 697; Graeff v. Philadelphia & Reading Railroad, 161 Pa. 230, 28 A. 1107, 23 L. R. A. 606, 61 Am. St. Rep. 885, and Cornman v. Eastern Counties Railway, 4 H. & N. 781, relied upon by the defendant, either turn upon the proposition that as a common carrier can be held liable for injury done by one passenger to another only upon proof that it has failed to discharge its duty of using the utmost vigilance to maintain order and guard against violence, so it must be shown that the circumstances which called for special action either were known or in the exercise of proper care ought to have been known to the defendant or its servants, or else lay down the rule (perhaps sometimes carried too far) that the carrier is not to be held liable for a mere breach of courtesy from one passenger to another.

There was evidence that there was usually a large crowd in the subway station at this time of the day; that there had been on many previous occasions the same surging and struggling to get upon the car as occurred at this time; and the jury had a right to find, as under the careful instructions of the court they must have found, that the defendant and its servants ought to have anticipated just what actually did take place, and ought in the exercise of the necessary care to have taken reasonable precautions to guard against such injuries as were caused to the plaintiff, and that they were negligent in failing to take such precautions and to give to the plaintiff that degree of protection which she had a right to expect from them. It follows that the defendant's third request for instructions was rightly refused.

Nor could its seventh request have been given. It was for the jury to say whether or not, if the crowding of its platforms and cars at certain hours of the day was unavoidable in carrying on its business, that the high degree of care which it was bound to exercise called for the employment of an increased number of men to prevent such jostling and crowding at the entrance of the cars as would involve danger to passengers, and whether or not it was reasonable, in view of the nature and extent of the defendant's business, to require this precaution to be taken.

It could not have been said as a matter...