Thayer v. Old Colony St. Ry. Co.
| Decision Date | 01 April 1913 |
| Citation | 101 N.E. 368,214 Mass. 234 |
| Parties | THAYER v. OLD COLONY ST. RY. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Nutter King & O'Reilly, of Brockton, for plaintiff.
Asa P French and Jas. S. Allen, Jr., both of Boston, for defendant.
The defendant lawfully could have excluded from the car, on which the plaintiff was a passenger, persons who from intoxication or by the use of indecent or profane language might cause annoyance and discomfort to other passengers. Or where the conduct of a person who has become a passenger is so offensive and disorderly as reasonably to warrant the inference, that inconvenience or annoyance may be caused expulsion can be enforced even if no overt act of positive disturbance has been committed. The carrier is not required to await the final outbreak with its probable consequences, before taking appropriate action. Connors v. Cunard S. S. Co., 204 Mass. 310, 315, 90 N.E. 601, 26 L. R. A. (N. S.) 171, 134 Am. St. Rep. 662, 17 Ann. Cas. 1051; Jackson v. Old Colony St. Ry., 206 Mass. 477, 485, 92 N.E. 725, 30 L. R. A. (N. S.) 1046, 19 Ann. Cas. 615.
In common with his copassengers the plaintiff had by the contract of carriage invoked the protection and benefit of this rule, whenever the defendant acting through its conductor in charge of the car deemed its enforcement reasonably necessary. Jacobs v. West End St. Ry., 178 Mass. 116, 118, 59 N.E. 639; Cobb v. Boston Elev. Ry., 179 Mass. 212, 60 N.E. 476. The evidence as to the intoxicated condition and unseemly behavior of the person ejected, whose name does not appear, amply warranted the jury in finding, as their verdict for the defendant shows, that his expulsion had been justifiable. But the action is not between him and the company. It is brought by a passenger who during the process of ejection, and by the mode of removal adopted, had been lifted from his seat, forced from the car, and thrown to the ground. The defendant was bound to protect the plaintiff from personal harm at the hands of its servants, whether the injuries were willfully or negligently inflicted. St. John v. Eastern R. R., 1 Allen, 544; Jackson v. Old Colony St. Ry., 206 Mass. 477, 92 N.E. 725, 30 L. R. A. (N. S.) 1046, 19 Ann. Cas. 615; Ramsden v. Boston & Albany R. R., 104 Mass. 117, 120, 6 Am. Rep. 200; Gray v. Boston & Maine R. R., 168 Mass. 20, 46 N.E. 397. It is not relieved from liability by proof that ejection was warranted, and no more force had been used on the person ejected than was reasonably necessary. The evidence must go farther. It should appear that the plaintiff's injuries did not result from the conductor's negligence. Gray v. Boston & Maine R. R., 168 Mass. 20, 46 N.E. 397. The defendant places great reliance upon Spade v. Lynn & Boston R. R., 172 Mass. 488, 52 N.E. 747, 43 L. R. A. 832, 70 Am. St. Rep. 298, and Cobb v. Boston Elev. Ry., 179 Mass. 212, 60 N.E. 476, as exonerating it. But in the first case the question now presented was left undecided, while in the second case the plaintiff, when about to take a seat in a car with a crowded aisle, was tripped by contact with an intoxicated man whom the conductor was removing in accordance with the rules of the road. The decision for the defendant is put expressly upon the ground that under the circumstances it was not reasonable for the passengers who were standing to require the conductor to wait until they had been seated before attempting the removal, and the evidence failed to show any negligence towards the plaintiff. A passenger by his contract, and where he is innocent of any wrongdoing, does not as matter of law, however, assume the risk during transportation of being pushed bodily from the car by the carrier's servant, while the servant is engaged in lawfully ejecting an obnoxious person. It would be a violation, not merely of the essence of the rule which springs from the contract itself, to declare, that while disorder can be suppressed, and if necessary those engaged therein expelled, the carrier can remove the objectionable person regardless of the personal welfare of orderly passengers for whose protection the act of expulsion is undertaken.
The standard of care required as between passenger and carrier while spoken of as the highest degree of care, means reasonable or due care under the...
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