Spicer v. Lynn & B.R. Co.
| Decision Date | 10 May 1889 |
| Parties | SPICER v. LYNN & B.R. Co. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Charles R. Elder, for appellant.
T.P Proctor and E. Tappan, for respondent.
The second count of the plaintiff's declaration in tort (the first having been withdrawn) alleges that the plaintiff took passage in the car of defendant, a common carrier of passengers, from Revere to Boston, paying her fare to defendant's servant who was in charge; that when the car had proceeded some distance towards Boston she was directed to change into another car, which she did, and that thereafter, while on the way towards Boston, she was ordered by the defendant's servants to leave said car, and was forcibly expelled therefrom. She alleges that "in consequence of her wrongful expulsion from defendant's car, the defendant's neglect of duty in not carrying her to Boston, as it was the duty of the defendant to do, and of her walk to Boston in order to reach her home, she was made severely ill for a long time, and suffered great bodily pain and anguish of mind, to her great damage." It may be inferred, perhaps, from this that the plaintiff did walk to Boston, but there is no distinct allegation that she did so or that she was subjected to any such inconvenience as required her to do so. It is the contention of defendant that two causes of injury to the plaintiff are thus set forth,--one the act of defendant; one that of plaintiff herself, not alleged to have been caused or rendered necessary by any act of defendant,--and that from these combined but distinct causes the injury to plaintiff resulted, and which is therefore not alleged to have been occasioned by defendant's act alone. Under this count the plaintiff cannot recover for any damage occasioned by her walking, or the necessity, if any, that she was under to do so; but the allegation that she was wrongfully and forcibly expelled from the car is a clear averment of a tortious act by defendant, for the consequences of which it is responsible, and the count may be treated as if the allegation as to the walking were omitted leaving the plaintiff to recover upon this count for such damage as she shall show proceeded from her expulsion. When several acts done to a plaintiff are combined in an allegation as causing him injury, some of which the plaintiff may fail to prove, or for some of which defendant may not be responsible, it would be...
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