Pomeroy v. Boston & N. St. Ry. Co.
| Citation | 193 Mass. 507,79 N.E. 764 |
| Parties | POMEROY v. BOSTON & N. ST. RY. CO. |
| Decision Date | 03 January 1907 |
| Court | United States State Supreme Judicial Court of Massachusetts |
Wm A. Pew. Jr., for plaintiff.
Robt. G. Dodge and Sanford H. E. Freund, for defendant.
The defendant by accepting the plaintiff as a passenger undertook to provide him with transportation to his place of destination, and in the performance of this duty it was required to exercise the highest degree of care commensurate with the nature of this undertaking. Warren v. Fitchburg Co., 8 Allen, 227, 233, 85 Am. Dec. 700; Galligan v. Old Colony Street Railway Co., 182 Mass. 211, 214, 215, 65 N.E. 48. In the construction and equipment of its road the trolley poles were located at certain distances along the railway, and the alleged defect by which the plaintiff was injured consisted of a pole so placed on the circumference of a curve that its inclination towards the track jeopardized the safety of passengers while riding on or using the running board of open cars. It appears from the evidence that this pole was set in such a manner that at a point about eight feet from the surface of the ground by reason of the angle of inclination it was six inches nearer the track, and if taken in connection with the projection of the running board when rounding the curve, such proximity could have been found by the jury to expose a passenger on the running board to the danger of coming into contact with it. In the use of closed cars this pole might not have rendered the road unsafe, yet when an open car was used a different question is presented. The transportation of passengers often includes the use by them of the running board by the invitation, and with the permission, of the carrier, and where this condition of travel appears then ordinarily as matter of law negligence cannot be inferred on the part of a passenger who stands thereon while in transit. Moody v. Springfield Street Ry Co., 182 Mass. 158, 65 N.E. 29; Wilde v. Lynn & Boston St. Ry. Co., 163 Mass. 533, 40 N.E. 851; Mason v. Boston & Northern St. Ry. Co., 190 Mass 256, 76 N.E. 717. The railroad and its equipment were constructed and operated for the carrying of passengers under the usual conditions of public travel, and it was for the jury to determine if in anticipation of such use of its car reasonable diligence called for a realignment of the pole to avoid the danger of possible collision, and if its failure to take this precaution was negligence. See Feital v. Middlesex Railroad Co., 109 Mass. 398, 405, 12 Am. Rep. 720; Sweetland v. Lynn & Boston Railroad Co., 177 Mass. 574, 579, 59 N.E. 443, 51 L. R. A. 783.
The further question whether the plaintiff was guilty of contributory negligence and assumed the risk also was an issue of fact. It certainly could not have been ruled as matter of law that from his previous knowledge of the location of the pole upon becoming a passenger he thus took the chance of defective construction or maintenance of the instrumentalities used for...
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