Shannon v. Boston & A. R. Co.

• Decision Date: 22 December 1885
• Citation: 2 A. 678,78 Me. 52
• Parties: SHANNON v. BOSTON & A. R. Co.
• Court: Maine Supreme Court

2 A. 678

78 Me. 52

SHANNON

v. BOSTON & A. R. Co.¹

SUPREME COURT OF MAINE.

Filed December 22, 1885.

Addison E. Haley and Edwin B. Smith, for plaintiff.

Wilber F. Lunt, for defendant.

PETERS, C. J. The most important facts of the case are these: The plaintiff was at the defendant's station on Columbus avenue, in Boston, with a ticket which entitled her to a passage from that place to Wellsley Hills, another station on their road. She had to wait some time for an expected train. While she and two other ladies, strangers to her, were seated in the waiting-room, some persons came in to clean the room. The three ladies applied to the ticket agent for leave to sit in his office, a separate apartment, which was not granted because that room was also to be cleaned. Leave was then asked—it was in July—to take seats upon the platform, and that was denied as being against the rules of the road. The agent said, "You can go into those empty cars,"—cars standing beside the platform,—adding the remark that the cars would remain there, and they could wait in them. Thereupon they seated themselves in the rear car. They had not been there long, when, without any previous signal or notice, the train began to be moved, by an engine, out of the station. Startled by the sudden and unexpected movement, the occupants hurriedly passed to the rear of the car, and jumped to the platform; the plaintiff receiving an injury thereby. Upon these and other less important facts, by means of motion and exceptions, several questions are presented.

It is contended that the judge erred in instructing the jury that the plaintiff was under the protection of the road as a passenger while she was in the car. It is admitted that she was a passenger before she entered and after she left the car. The position of the defendants is that she was in the car at her own risk; that the relation of carrier and passenger was terminated or suspended while she was in the car,—just as much so as if she had gone entirely out of and away from the station for the time being. Much stress is placed upon the alleged fact that the three ladies were permitted to go into the car, but were not required or directed to do so. That is not our view of the affair. Nor do we think that the authorities cited for the defendants bear out their position. It may be that a person waiting at a station would not be in the condition of a passenger while wandering about the yard or entering cars for purposes disconnected with the act of traveling, although his conduct in that respect is not objected to by the agents of the road. He is acting on his own responsibility for the time. That is not this case. Here the agent apprised the plaintiff that she could sit in the car as a substitute for a waiting-room. It was more than a mere toleration of the act,—a passive permission to enter the car. It was a positive invitation to do so.

It is contended on behalf of the defendants that upon other grounds it should have been ruled as a matter of law that the plaintiff cannot recover—First, because it is an imperative rule that a person cannot recover for an injury caused by jumping from a moving train, unless the act be done through fear of an impending danger; secondly, because, even if the rule is more comprehensive than that, there is not in the evidence sufficient excuse for the plaintiff's act to allow the question to be submitted to a jury.

There cannot be a doubt that, generally speaking, a passenger is not justified in getting upon or off of a moving train unless at his own risk. If all you know of it is that a passenger jumps from a train in motion, and is injured, you would charge him with carelessness for the act. The act is prima facie negligence. But the question whether the case belongs to the court or jury for decision arises when the excuse offered for the act is considered; and there can be no imperative rule governing that question, unless the defendants be right in their contention that fear of personal danger is the only excuse for jumping from a moving train, and in that position we do not concur with the defendants. There is a good deal of well-considered authority which exonerates a passenger from blame, who, being suddenly put into a condition of nervous excitement and alarm by the fault of the railroad, under the impulse of the moment jumps from a moving train before it has attained much speed, although the passenger's motive in doing so is merely to save himself from serious inconvenience. Whether a justification exists or not must depend upon the speed of the train and other circumstances. One test, among others, would be whether the passenger did what careful and experienced persons generally would be likely to do in similar circumstances. Whart. Neg. § 377, and cases in note; Robson v. Railroad Co., L. R. 10 Q. B. 271; Adams v. Railroad Co., L. R. 4 C. P. 744; Filer v. Railroad Co., 49 N. Y. 47; S. C. 59 N.Y. 351, and 68 N.Y. 124; Johnson v. Railroad Co., 70 Pa. St. 365; Delamatyr v. Railroad Co., 24 Wis. 586.

As already intimated, the burden is on the plaintiff to prove that she was not guilty of contributory negligence; that is, that she had good excuse for her act. The same evidence which describes the occurrence may be proof enough upon the point; but, if not, other proof must be adduced. If the excuse set up be plainly insufficient, the law disposes of the case. If it be an extreme case,—a clear case either way,—the law determines the question, because a court and jury should decide alike in such cases. But, from the nature of things, there can be no definite rule applicable to such a variety of facts as the cases are likely to present. Therefore the usual practice is to submit the case to a jury under the guidance and with the aid of the court. The rule that a person shall look and listen before crossing a track, relied upon by counsel as analogous, stands upon a different reason. There can be but few exceptions or explanations under that rule. Nor does it take a case from the jury because all of the...