Murphy v. Union R. Co.

• Decision Date: 03 September 1875
• Citation: 118 Mass. 228
• Parties: John H. Murphy v. Union Railway Company
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

118 Mass. 228

John H. Murphy v. Union Railway Company

Supreme Court of Massachusetts

September 3, 1875

Suffolk. Tort against a street railway corporation for injuries sustained by reason of an attempt on the part of a conductor to eject the plaintiff from one of its cars while in motion.

At the trial in this court, before Morton, J., there was evidence tending to show that the plaintiff was a passenger in the car; that he was intoxicated to a degree that rendered him offensive to other passengers, and that the conductor undertook to remove him from the car by pushing him backward from the rear platform thereof while the same was in rapid motion along Leverett Street in Boston; that the plaintiff in his struggles to prevent being so ejected, thrust his hand through a pane of glass which was over the rear platform of the car, and received thereby the wound which caused the injury complained of.

The defendant introduced evidence tending to show that no attempt was made to eject the plaintiff from the car; that the plaintiff by his own act thrust his arm through the glass before any interference by, or struggle with, the conductor and that the car was not in motion when the plaintiff left it.

The judge instructed the jury, in substance, that if the plaintiff entered a horse-car of the defendant in a state of intoxication, and while there misbehaved himself, it was the right and duty of the conductor to eject him from the car using reasonable and proper force; or if the conductor had reasonable cause to believe that he would, by his condition or actions, render himself offensive to the other passengers, it was also his right to eject him from the car.

The plaintiff then requested the judge to rule that even if the jury should find that the plaintiff was intoxicated when he entered the car, yet that the conductor would have no right to eject him therefrom while the car was in rapid motion; but that it was his duty to ring the bell and stop the car before commencing to eject the plaintiff; and that his failure to do so was negligence which would render the defendant liable. The judge declined to give this instruction; but upon this branch of the case instructed the jury that it was a question of fact, to be determined by them upon all the evidence, whether it was due care and a proper exercise of the right to remove the plaintiff, for the conductor to attempt to remove him while the car was in motion.

The jury returned a verdict for the defendant; and the plaintiff alleged exceptions to the foregoing ruling and to the refusal to rule as requested.

Exceptions overruled.

E. D. Sohier & W. H. Towne, for the plaintiff. To push a drunken passenger off the platform of a horse-car while the same is in motion is a want of due care on the part of the carrier, as a matter of law. Lovett v. Salem & South Danvers Railroad, 9 Allen 557. Nichols v. Middlesex Railroad, 106 Mass. 463. Wilton v. Middlesex Railroad, 107 Mass. 108.

The question has been raised and decided in several other states. Thus in New York it has been held that a horse railroad company cannot eject a passenger while the car is in motion, and is liable for an injury suffered by a passenger who is put off by its servants while the car is in motion, for refusing to pay his fare. Sanford v. Eighth Avenue Railroad, 23 N.Y. 343. Higgins v. Watervliet Turnpike Co. 46 N.Y. 23. Isaacs v. Third Avenue Railroad, 47 N.Y. 122. See also Pennsylvania Railroad v. Vandiver, 42 Penn. St. 365; Kline v. Central Pacific Railroad, 37 Cal. 400; Meyer v. Pacific Railroad, 40 Misso. 151; Shearman & Redfield on Negligence, (3d ed.) § 264 a.

G. A. Somerby & C. E. Hubbard, for the defendant.

Devens, J. Morton & Endicott, JJ. absent.

OPINION

Devens, J.

The injury to the plaintiff was not received by being ejected from the defendant's car; according to the evidence in his behalf it occurred by his own act in his struggles to prevent his being ejected therefrom, the car being in rapid motion; while, according to the defendant's evidence, the injury occurred by the...