Mcgilvray v. West End St. R. Co.

• Decision Date: 21 June 1895
• Citation: 41 N.E. 116,164 Mass. 122
• Parties: McGILVRAY v. WEST END ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

164 Mass. 122

41 N.E. 116

McGILVRAY v. WEST END ST. RY. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

June 21, 1895

Plaintiff testified that while he was standing in the street with one foot on the sidewalk and the other on the step to defendant's car house, waiting for a car, he complained to the conductor of the car which had just been switched into the car house, because the conductor had not told him that the car was not going through, and that the conductor, after saying that plaintiff had not asked him if it was going further, and after certain other conversation, assaulted him.

COUNSEL

L.M. Child, for plaintiff

Wm. B. Sprout, for defendant.

OPINION

BARKER, J.

If we assume in favor of the plaintiff that, upon the evidence, the jury might find that he had paid his fare through to Prospect street, and that, in addition to his right to remain unmolested upon the public street, he had the right, upon leaving the car which had been switched into the stable, to inquire of the conductor why the contract to carry him to Prospect street was not carried out, and to enter the stable to ascertain when and how he could be carried to his destination, yet the verdict for the defendant was rightly ordered. The only reasonable inference to be drawn from the whole evidence is that while waiting in the public street to take one of the defendant's cars, he saw fit to engage in an altercation with a person who was in fact one of the defendant's servants, and received from him an assault which was not made for any purpose which the jury could find to be part of the defendant's business. The defendant had no control over the place where the plaintiff was, and no duty to protect the plaintiff there from any assaults, although it would be responsible to him for assaults committed upon him there, as elsewhere, by its servants in the scope of their employment. The suggestion that it could be found within the scope of that employment for a servant to punish him for asserting his rights against the defendant is of course untenable; nor is there sufficient ground in the suggestion that the assault was for the purpose of putting him out of the defendant's premises to warrant submitting the case to a jury. Exceptions overruled.