Peverly v. City of Boston

• Decision Date: 22 January 1884
• Citation: 136 Mass. 366
• Parties: William A. Peverly v. City of Boston
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

136 Mass. 366

William A. Peverly v. City of Boston

Supreme Court of Massachusetts

January 22, 1884

Argued November 16, 1883 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Suffolk. Tort for personal injuries sustained by the plaintiff while a passenger on a ferry-boat used by the defendant as a common carrier of passengers for hire. Trial in the Superior Court, before Knowlton, J., who allowed a bill of exceptions, in substance as follows:

The jury took a view of the boat, and of the gates at the ends thereof, hereinafter described. The boat, except as herein specified, was of the ordinary form of ferry-boats, the centre lengthwise being occupied and traversed by vehicles, and either side by foot-passengers. Amidships of the boat, on either side, are cabins. From the cabin to the gate at which the accident happened is a strip of deck which is commonly occupied by foot-passengers during the trip, and is passed over by them in entering and leaving the boat. This strip was spoken of as a passageway, during the trial, by the counsel on both sides, and by two of the defendant's witnesses. A canopy extends from the cabin over eleven feet of this strip, and the remaining sixteen feet thereof is not in any way sheltered or roofed in. There is no gate or partition between the space under the canopy and the rest of the deck. In the cabin and under the canopy are seats, but not elsewhere. At each end of the boat, on either side of the driveway for vehicles, and between it and the space occupied and traversed by foot-passengers, are posts, and attached to and working upon each of said posts is a pair of gates, each pair operated together and folded perpendicularly, one of said gates when lowered extending across the end of the strip of deck occupied and traversed by foot-passengers as aforesaid, and the other extending across one half the driveway, and the two pairs extending across the whole end of the boat. Each gate is composed of two horizontal iron rods, an upper and a lower, and of several vertical iron rods bolted on to the horizontal ones. The latter are hinged to the post, in such a way that, when the gates are to be opened, the horizontal rods swing upward upon the end next the post as pivots, gradually assuming a vertical position till all the parts composing the gate are in a vertical position, close to each other and to the post. Upon each post is plainly painted, "Hands off the Gates." At the time of the accident there was a chain attached to a post twenty-five and one half inches back from the gate, to be hooked across the passageway, at an angle, to a staple at the outside of the boat, so that the shortest distance between the chain and the outer end of the gate was twelve inches. The chain as it hung when hooked into the staple was slack, and a person pressing against it in the middle could bring it within eight inches of the gate when the gate was lowered. This chain was formerly used there, and was not put up at the time of the construction of the gate.

At the time of the accident, there was no lock or fastening of any kind upon the gate. When the gates were put on the boat, there were locks at the top which operated with a key that fastened the two pair of gates together. At the bottom of each gate, on the end at the centre of the boat, was a bolt, with a handle, flange, and catch, that went down into a socket on the deck, and turned round and locked the gate; and to open the gate it was necessary to take hold of the handle and turn the bolt a quarter round. At the time of the accident, the lock at the top had been removed, how long before was not shown, and the catch on the bolt which went down into the socket in the deck was off, so that this did not work and lock the gate. When this catch was broken off, or allowed to get out of working order, was not shown. The captain of the boat testified, on cross-examination: "I don't know when the lock at the top was taken off. I don't know whether the catch has been broken off, or whether it is there yet. I don't know how long that boat has been running without it being on at all. I did not order it off. I don't know that it is off. I have not been down to examine it. The purpose of putting the lock on the gates was to keep passengers from opening the gates, and to prevent the passengers from being crushed to death between the boat and the drop." Since the accident, a chain has been put on, which is attached to the post in the rear of the gate and permanently bolted to the outside end of the gate, and operates with it. As to the locks that operated with a key and locked the gates together, the captain testified: "They would never stay there. The passengers could shake them, and they would open. We tried them every way, and gave them up. We did not try any other method of locking, -- either a padlock, or chain with a lock, or anything of that kind, to fasten the gates together. The bolt that went down into the deck and turned part way round, when in working order, held the gate fast, so that no passenger could throw it up."

The crew ordinarily consisted of a captain, engineer, fireman, and two deck-hands; and the ordinary process of opening the gates was as follows: one deck-hand stood near the gates at the bow, and the other near those at the stern, till about the end of the trip, when the man at the stern, at a signal from the captain, dropped a pin into the rudder to make it serve as a prow for the return trip, and then came forward; the man at the bow, standing in the driveway, raised one pair of gates, while both men stepped outside to the extreme front of the boat, closing the gates behind them; on the boat coming close to the drop, the two deck-hands stepped ashore, one on each side, hooked the chains to the boat, worked the windlass till the boat was fast, and then went to the middle of the driveway; each took hold of one gate and faced the outside of the boat so as to be able to see the whole of the gate that he had hold of, and kept his eye on the gate to see that no one got hurt; then they raised the gates.

The plaintiff, being the sole witness in his behalf as to the accident, and being uncontradicted, testified as follows: "I started to come to Boston in the morning. When I got to the East Boston ferry it was very foggy; and, when I went aboard the boat, I went through the cabin, or into the cabin, and stayed there some time, I don't know exactly how long. It was very thick, and the boat was running very irregularly. It struck Battery Wharf, and then I went through the cabin, and went forward within two or three feet of the gate, the same as lots of the passengers. We were just as thick as we could stand; and when the boat went into the slip, I saw somebody hook on the boat. They hooked on the boat, and jumped at the middle where the horses went out, where they were heaving this gate up, and this gate went up, and the instant the gate started, there seemed to be a big pressure of the passengers, -- they kind of rushed quick, -- and in half a second I was thrown forward against this gate, I being nearer the post than any one, and I threw my hand up this way, to save myself from going against the gate, and I was triced right up by my little finger on that hand, and as quick as I got caught I cried out. I grabbed hold of this hand, and gave my finger a jerk. At the same time a couple of passengers jumped at the gate and took hold of it to pull it down to release my hand; I can't tell whether they did or not. I pulled my hand out, and started up the drop. I should judge there were from a hundred and fifty to two hundred more passengers than the boat generally carries, on account of its being foggy." He further testified that, when he went out from the cabin, the chain attached to the post two feet back from the gate was lying on the deck in front of him, as it was very common to be lying on the deck.

On cross-examination, he testified: "For three or four years I have come over this ferry every week, from one to three or four times a week; the gates were put on after I began to come this way from Chelsea, and something like three or four years ago. I have seen the gates work, and knew how they worked exactly, and knew the danger of it; have seen the sign on the gates, 'Hands off the Gate.'" When asked, on redirect examination, what he meant by knowing the danger of the gate, he said: "I mean if a man got against them, or put his hand on them when in operation, of course it would injure him. I did not put my hand voluntarily on the gate." He further testified, on cross-examination, that he spent most of the time in the cabin, where there was room enough to stay; that when the boat touched Battery Wharf, he came forward with a great many others; that there was no one directly between him and the gate, but there were passengers on his right, nearer the gate, and at its end where it goes up; that he stood over two feet from the gate, and stood back of the chain; that he was the person nearest to the gate at that point; that the passengers were crowding up there, and that was the reason he got shoved when they made a lurch. In answer to many and varied questions as to his purpose of being there, etc., he testified: "I went forward the same as I have been hundreds of times, and not only me, but hundreds of others;" that he went forward so as to come out with the other people, he supposed; that at the same time he was not in a hurry; that he went forward so as to crowd along and get along and see where the boat was, as much as anything; that the passengers hurried up the drop as quick as they could to get into the horse-car; that persons who get off...