Scott v. Boston Elevated Ry. Co.

• Decision Date: 05 March 1945
• Citation: 60 N.E.2d 5,318 Mass. 31
• Parties: SCOTT v. BOSTON ELEVATED RY. CO. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

318 Mass. 31

60 N.E.2d 5

SCOTT

v.BOSTON ELEVATED RY. CO. (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

March 5, 1945.

Exceptions from Superior Court, Suffolk County; Buttrick, Judge.

Actions of tort by Bruce Scott, a minor, and Alexander Scott, respectively, against the Boston Elevated Railway Company for personal injuries to minor plaintiff and consequential damages. Defendant's motions for directed verdicts were allowed, and plaintiffs bring exceptions.

Exceptions overruled.

Before FIELD, C. J., and LUMMUS, QUA, DOLAN, and SPALDING, JJ.

T. H. Mahony and R. F. Roach, both of Boston, for plaintiffs.

S. C. Rand and F. R. Johnson, both of Boston, for defendant.

DOLAN, Justice.

These are actions of tort to recover in the first case compensation for personal injuries sustained by the minor plaintiff, and in the second case consequential damages. At the conclusion of the evidence the judge allowed the defendant's motion for a directed verdict in each case, and the plaintiffs duly excepted.

The evidence in its aspect most favorable to the plaintiffs would have warranted the jury in finding the following facts. On June 6, 1941, at about 7:30 P. M., the minor plaintiff, hereinafter referred to as the plaintiff, who was then ‘going on’ twelve years of age, left his home on East Newton Street, in Boston, to go to the Boys Club, located on Washington Street next to the Salvation Army building, near East Brookline Street. He got on the bus, which was then just starting up, ‘going just a little bit,’ and was bound intown, at the corner of East Newton Street. He did not get into the bus and paid no fare. He was ‘hooking a ride’ on the outside of the bus, holding onto a window which was partly open, the second window from the front end on the right of the driver. He knew that was ‘wrong.’ He was facing toward the side of the bus. He had one foot, he thought the right foot, on the right front ‘wheel fender.’ The bus went by Blackstone Park. He was still hanging on. The bus stopped at the Salvation Army Hotel (at the corner of East Brookline Street) and people got on the bus. Proceeding intown, the bus passed Canton Street and slowed down, and he jumped off. He ran a couple of steps and bumped into an automobile, and fell down in back of the wheels of the bus. ‘The bus could not stop right there because cars were parked, so it went in between the poles [uprights of the Elevated structure] and out in between * * * [them] and as it did so it backed up and bumped him on the side. * * * it all happened pretty quickly. * * * the wheels didn't go over him.’ A photograph of the bus, which was presented as an exhibit, shows that the rear wheels of the bus were located thereunder at some distance from the rear end of the body of the bus. A witness called by the plaintiffs testified that she saw the accident; that she saw the plaintiff on the right hand side of the rear of the bus and saw him fall; that the bus went back, then forward, ‘just pinched him like,’ and stopped, and then went forward; and that it did not ‘go along any distance at all.’ It stayed there and the plaintiff was three or four feet from it. Another witness called by the plaintiffs testified that she saw the bus going by and noticed the ‘child’ hanging on its outside on the right hand side, back near the end of the bus, that she saw his hands disappear and heard a scream. The testimony of these witnesses was not inconsistent with that of the plaintiff to the effect that ‘it all happened Jacobucci, 317 Mass....