Powers v. Old Colony St. Ry. Co.

• Decision Date: 24 February 1909
• Parties: POWERS v. OLD COLONY ST. RY. CO. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

201 Mass. 66

87 N.E. 192

POWERS v. OLD COLONY ST. RY. CO. (two cases).

Supreme Judicial Court of Massachusetts, Plymouth.

February 24, 1909

COUNSEL

Fowler Dean, Bauer & Kenney, for plaintiffs.

Asa P French and Jas. S. Allen, Jr., for defendant.

OPINION

KNOWLTON C.J.

These are two actions of tort, one brought by a woman, to recover for a personal injury, and the other by her husband, to recover for the cost of medical attendance and for other expenses incurred by reason of the injury.

On the line of the defendant's railway work was going on in the abolition of a grade crossing of the Old Colony Railroad such that the running of the defendant's cars was interrupted, and it became necessary for passengers to leave the cars, go around an obstruction on foot, and take other cars to continue their travel on the other side. The distance between the cars on the opposite sides of the obstruction, by the route which was regularly traveled, was about five minutes' walk. By the nearest public highway, it was about a mile and a half. The path used led across private land for about 220 feet, and the evidence showed that this was very rough plowed ground, with stones and other irregularities in it, upon which the passengers, by use, had worn a kind of path about 4 feet wide, which was more or less irregular. The accident happened in the evening, and it was dark. Some of the witnesses said it was extremely dark. The female plaintiff, hereinafter called the plaintiff, struck her foot against a large stone which projected into the path, and she fell and was injured. When the car on which she was riding reached the obstruction, the conductor called, 'All change to forward car,' and the motorman led the way, the passengers, about 15 in number, following him, most of them in single file. Notwithstanding the presence of two or three electric lights maintained by the defendant not far away, and notwithstanding the fact that the plaintiff had passed over the place previously in the daytime, we think it plain that it was a question for the jury whether she was in the exercise of due care.

The principal question is whether there was evidence of negligence on the part of the defendant. Because of the impossibility of running its cars upon the highway where the work was going on, the defendant was relieved of its obligation to carry passengers in that part of its route, and it might have declined to continue in any relation to them after they left its car on one side of the obstruction until they were received upon the car on the other side. But it did not choose to do this. The judge ruled, at the defendant's request, that the plaintiff was not a passenger while passing from one car to the other. It is questionable whether there was not evidence from which the jury might have found that the relation of passenger and carrier was continued while the passengers were passing from one car to the...