Lockwood v. Boston Elevated Ry. Co.
| Decision Date | 06 January 1909 |
| Citation | 86 N.E. 934,200 Mass. 537 |
| Parties | LOCKWOOD v. BOSTON ELEVATED RY. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Jan. 6 1909.
J. E McConnell and J. W. McConnell, for plaintiff.
Robert G. Dodge and Sanford H. E. Freund, for defendant.
The defendant's exceptions to the refusal to give the first, seventh, ninth, tenth, eleventh and twelfth requests must be overruled. It was within the province of the jury to find, upon conflicting evidence, that the plaintiff and his companion desiring to become passengers signalled an open car. In response, the motorman having inclined his head, they started from the sidewalk, and when it stopped boarded the car with the knowledge of the conductor, and the plaintiff had reached and stood upon the running board, on his way to a seat, at the time of the injury. If the jury so found, the relation of passenger and carrier had been established, and the defendant owed to him the duty of taking every reasonable precaution which might be required for his safe transportation. Millmore v. Boston Elev. Ry. Co., 194 Mass. 323, 80 N.E. 445, 11 L. R. A. (N. S.) 140, 120 Am. St. Rep. 558; Rand v. Boston Elev. Ry Co., 198 Mass. 569, 84 N.E. 841; Marshall v. Boston & Worcester St. Ry. Co., 195 Mass. 284, 81 N.E. 195. The conductor, while claiming, in his testimony, that the car had not been stopped, nor the plaintiff recognized and accepted as a passenger, also stated that he saw him when he boarded the car, and noticed at the same time the proximity of the wagon passing along in the same direction parallel with the car, with which it shortly after came into collision. If under these circumstances the conductor gave the signal, or the motorman in the exercise of due diligence should have foreseen that it was dangerous to go ahead, and the car was started before the plaintiff had a reasonable opportunity to reach a seat, or position of safety, this furnished evidence which would warrant a finding that the defendant was negligent. Weeks v. Boston Elev. Ry. Co., 190 Mass. 563, 77 N.E. 654; Rand v. Boston Elev. Ry. Co., 198 Mass. 569, 84 N.E. 841. Nor could it have been ruled, as matter of law, that the plaintiff was guilty of contributory negligence. If the plaintiff and his companion were believed, the team had passed them before they started from the sidewalk. Ordinarily the man of average prudence, neither in taking steps to become nor after he has been accepted as a passenger by a street railway, pauses deliberately to consider whether under the usual conditions of public travel the car will be so operated as to come into contact with a team which has just passed going in the same direction. A failure to take this precaution, while a matter to be considered by the jury, affords no conclusive presumption of carelessness. Apart from any knowledge he could have been found to have had of the closeness of the team to the running board owing to the crowded traffic, the plaintiff also had a right to rely upon the assumption that, while in the act of getting on and passing to a seat, the defendant's servants would not start the car until all danger of its running so near to the team as to injure him had passed. Pomeroy v. Boston & Northern St. Ry. Co., 193 Mass. 507, 512, 79 N.E. 764. It is further contended that the efficient cause of the plaintiff's injury was the negligence of his companion with whom he had boarded the car, and who, having been first struck by the team while standing on the running board preparatory to taking a seat, was thrown against the plaintiff, forcing him against one of the stanchions from which he was thrown into the street. But even if the contact of his companion indirectly forced him off, this fact was not an independent intervening cause which would exonerate the defendant, for if the collision had not occurred through the defendant's negligence, the plaintiff would not have been injured. Doe v. Boston & Worcester St. Ry. Co., 195 Mass. 168, 172, 183, 80 N.E. 814. Besides, notwithstanding it is assumed to the contrary in argument, the defendant had the benefit of the eleventh request which was given in general terms.
It is the defendant's theory of the injury, upon the evidence which it introduced, that, without having been either recognized or accepted as a passenger, the plaintiff was injured while in the attempt to board a moving car, as it was passing between the signal posts. Undoubtedly there must be an acceptance by the carrier, before the person who offers himself becomes a passenger. But the principle as applied to those who offer themselves for transportation by railroads, whose trains stop only at fixed stations,...
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