Stewart v. Boston & P.R. Co.
| Decision Date | 04 May 1888 |
| Citation | 16 N.E. 466,146 Mass. 605 |
| Parties | STEWART v. BOSTON & P.R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Geo A. Perkins, for plaintiff.
The fact that plaintiff went upon the platform of the car in carrying out the directions of the conductor, who told him to take one of the rear cars, and the lurching of the car, and there being nothing to prevent passengers from falling, are of themselves, unexplained and unaccounted for, sufficient evidence to put the defendant, whose duty it was to keep the whole car in a proper and safe condition, on its defense, and carry the case to the jury. The plaintiff, upon being told by the conductor to take one of the rear cars, had a right to carry out such directions, and, while passing from one car to another, was, under such circumstances, still a passenger and entitled to all the rights and privileges. McIntyre v. Railroad Co., 37 N.Y. 287; McKimble v. Railroad Co., 141 Mass. 463, 5 N.E. 804; Marquette v Railroad Co., 33 Iowa, 569. The plaintiff going from one car to another in accordance with instructions of the conductor, the defendant assumes the risk, and is bound to provide such safeguards as will prevent passengers from falling. Such direction was within the scope of the conductor's authority. McIntyre v. Railway Co., 37 N.Y. 287; McKimble v. Railroad Co., 141 Mass 463, 5 N.E. 804; Same v. Same, 139 Mass. 542, 2 N.E 97; Marquette v. Railroad Co., 33 Iowa, 569; Railroad Co. v. Manson, 30 Ohio St. 451; Whart.Neg. 368. It is not necessary that there be an express direction to the plaintiff on the part of the conductor, but it is sufficient if the plaintiff was induced to go from one car to another by the actions and conversations of the conductor. Solomon v. Railroad Co., 103 N.Y. 437, 9 N.E. 430; McIntyre v. Railroad Co., 37 N.Y. 287; Filer v. Railroad Co., 49 N.Y. 47; Warren v. Railroad Co., 8 Allen, 227; Sweeney v. Railroad Co., 10 Allen, 368; Lambeth v. Railroad Co., 66 N.C. 494; Railway Co. v. Krouse, 30 Ohio St. 222; Railroad Co. v. Manson, Id. 451. Although the plaintiff, by mistake, was upon the wrong train, having a ticket good only to a station at which said train did not stop, yet he was nevertheless a passenger. The conductor's telling him to take the rear car is evidence to show that, from that time at least, he was a passenger. McKimble v. Railroad Co., 139 Mass. 542, 2 N.E. 97; Same v. Same, 141 Mass. 463, 5 N.E. 804; Wilton v. Railroad Co., 125 Mass. 130; Same v. Same, 107 Mass. 108. If the plaintiff show some negligence on the part of defendant, and also gives evidence which may or may not be considered as amounting to contributory on his part, the case ought to be left to the jury. Brown v. Railway Co., 52 Law T. (N.S.) 622. Defendant is bound to use the best precaution in known practical use to secure the safety of its passengers, and must use the highest degree of care to secure such safety, and is responsible for the slightest neglect, if any injury is caused thereby. The presumption is against the carrier. Ford v. Railway Co., 2 Fost. & F. 730; Railway Co. v. Kelly, 92 Ind. 371; Railway Co. v. Buck, 96 Ind. 346; McElroy v. Railroad Corp., 4 Cush. 400; Ingalls v. Bills, 9 Metc. 1; Meier v. Railroad Co., 64 Pa.St. 225; Fuller v. Railroad Co., 21 Conn. 557; Knight v. Railroad Co., 56 Me. 234; Shear. & R.Neg. 266; Black v. Railroad Co., 10 La.Ann. 33; Huelsenkamp v. Railroad Co., 37 Mo. 537; Johnson v. Railroad Co., 11 Minn. 296, (Gil. 204;) Taylor v. Railroad Co., 48 N.H. 304; Brown v. Railroad Co., 34 N.Y. 404; Railroad Co. v. Rainbolt, 99 Ind. 551. Although the plaintiff may have been guilty of some negligence, and that negligence may in fact have contributed to the accident, yet if the defendant could in the result, by the exercise of reasonable care, (such as placing a gate across said platform,) have avoided the accident which happened, then the plaintiff is entitled to recover. Radley v. Railway Co., 1 App.Cas. 754; Davies v. Mann, 10 Mees. & W. 546; Patters.Ry.Acc.Law, 51. The facts, as testified by the plaintiff, do not show, as a matter of law, such want of due care on his part as to preclude him from recovering, but should have been submitted to the jury, with such other evidence as he had to introduce, for its determination as to whether the plaintiff, at the time of the accident, was in the exercise of due care.
George Putnam and Thomas Russell, for defendant.
The evidence in this case was insufficient to warrant a finding of negligence on the part of the defendant, causing the plaintiff's injuries; and, if there was negligence on the part of the defendant in not properly directing the plaintiff to his train, that negligence was not a proximate cause of the injuries to the plaintiff. It had nothing to do with his falling off the train that he did take, and does not make the defendant liable for such injuries. Tutein v Hurley, 98 Mass. 211; Carter v. Towne, 103 Mass. 507. The only possible ground of imputing negligence to the defendant is the assumed direction of the conductor to the plaintiff to go back to the rear of the train while it was in motion. The conductor's language does not bear this construction; but even if the conductor's words can be construed to mean that only the two rear cars would stop at Canton Junction, and that, for the plaintiff to stop there, and return at 8:30, it would be necessary for him to go through the train, and take them before arrival at Canton Junction, they do not imply any order or direction to the plaintiff to go back, or any prohibition to him to stay where he was. They only amount to information that the easiest way for him to correct his mistake would be to go back to two rear cars. He does not say that he understood them as a command to go back, and no reasonably intelligent person could have so understood them. His liberty of choice to stay where he was until the car that he was in stopped, or to go back and be left at Canton Junction with the two rear cars, was not interfered with. He chose the latter course without any compulsion; and, if it was a dangerous course, it involved none but obvious dangers, which any person of mature age is presumed to know; and the conductor, therefore, was not negligent in failing to point them out. Vimont v. Railway Co., 71 Iowa, 58, 60, 32 N.W. 100; Railroad Co. v. Hazzard, 26 Ill. 373, 385. There being, then, no evidence from which defendant's negligence can reasonably be inferred, the judge rightly directed a verdict for the defendant. Com. v. Railroad Corp., 101 Mass. 201; Railway Co. v. Jackson, 3 App.Cas. 193; Davey v. Railroad Co., 12 Q.B.Div. 78; Jewell v. Parr, 13 C.B. 909, MAULE, J., p. 915; Claflin v. Meyer, 75 N.Y. 260, 266; Baulec v. Railroad Co., 59 N.Y. 356; Tully v. Railroad Co., 134 Mass. 499. Even if the conductor's words were meant and understood as a command, their connection with the injury was so remote that they cannot in law be deemed to have caused it. The plaintiff's own...
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