Massell v. Boston Elevated R. Co.
| Decision Date | 16 May 1906 |
| Citation | 78 N.E. 108,191 Mass. 491 |
| Parties | MASSELL v. BOSTON ELEVATED RY. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Walter A. Webster and Stebbins, Storer & Burbank, for plaintiff.
Ralph A. Stewart and Jos. F. Berry, for defendant.
1. The plaintiff in this case was a trespasser upon a car of the defendant; and the defendant owed him no duty except to refrain from willfully, wantonly or recklessly exposing him to danger. Banks v. Highland Street Ry., 136 Mass. 485; Planz v. Boston & Albany R. R., 157 Mass. 377, 382, 32 N.E. 356, 17 L. R. A. 835; Leonard v. Boston & Albany R. R., 170 Mass. 318, 320, 49 N.E. 621; Mugford v. Boston & Maine R. R., 173 Mass. 10, 52 N.E. 1078; Bjornquist v. Boston & Albany R. R., 185 Mass. 130, 70 N.E. 53, 102 Am. St. Rep. 332; Albert v. Boston Elevated Ry., 185 Mass. 210, 70 N.E. 52.
While the language used by the motorman was rough and the gestures threatening, it is obvious that the plaintiff had no reasonable ground to believe that the motorman intended to assault him. The car was going at a low rate of speed and came to a dead stop within five feet of the place where the plaintiff attempted to get off. The plaintiff had been a newsboy for a year and was familiar with the streets of Boston. There was nothing in the motorman's words or in his gestures to intimidate an ordinary newsboy. The case is fully covered by the authorities above cited.
2. The evidence offered was rightly excluded, as immaterial and irrelevant. The defendant could not be bound by evidence that other conductors and motormen had allowed the plaintiff to get upon their cars, in the absence of evidence that the defendant or its officers knew the fact and acquiesced in the violation of the rules. Thompson v. Boston & Maine R. R., 153 Mass. 391, 26 N.E. 1070.
Exceptions overruled.
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