Robertson v. Boston & N. St. Ry. Co.

• Decision Date: 03 January 1906
• Citation: 76 N.E. 513,190 Mass. 108
• Parties: ROBERTSON v. BOSTON & N. ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

190 Mass. 108

76 N.E. 513

ROBERTSON v. BOSTON & N. ST. RY. CO.

Supreme Judicial Court of Massachusetts, Middlesex.

January 3, 1906

COUNSEL

Julian C. Woodman and Chas. Toye, for plaintiff.

Endicott P. Saltonstall and Sanford H. E. Freund, for defendant.

OPINION

MORTON, J.

The plaintiff, with some companions, boarded in Revere, at half past 11 in the evening of April 20, 1902, a car belonging to the defendant, thinking that it was the proper car to take him to his home. The car had stopped at a stopping place upon a signal from another person, meaning, as we construe the exceptions, some other person who wished to alight. After the plaintiff had boarded the car and taken a seat the conductor called out, 'this car goes to the stables only,' in consequence of which, after several of plaintiff's companions had left the car, he attempted to get out, and as he was doing so the car suddenly started and threw him causing the injuries complained of. The stables, if that is material, were in the direction in which the plaintiff was going. The plaintiff alleged in his declaration that he 'boarded one of said company's cars in said town with the intent of becoming a passenger; that while he was in the act of alighting, * * * and in the exercise of due care, he was thrown to the street in consequence of the sudden starting of the car,' etc. The court instructed the jury 'that the defendant owed to the plaintiff the duty of ordinary care only, and that he had not the rights of a passenger, as he had not claimed in his declaration that he was a passenger.' At the conclusion of the charge the counsel for the plaintiff handed to the court for the first time a written request that the jury be instructed that if they found that the plaintiff boarded the car, intending to become a passenger, then the defendant was bound to exercise the same degree of care towards him as towards a passenger. The court declined to instruct the jury as thus requested, and seved the plaintiff's exception thereto, understanding that the whole question as to the degree of care was raised by and saved to the plaintiff. Thereupon the defendant excepted to the giving by the presiding judge of an exception to the plaintiff after the arguments and charge had been completed. There was a verdict for the defendant, and the case is here on the plaintiff's exceptions to the refusal of the court to instruct the jury as above requested.

The...