Tompkins v. Boston Elevated Ry. Co.

• Decision Date: 25 February 1909
• Citation: 87 N.E. 488,201 Mass. 114
• Parties: TOMPKINS v. BOSTON ELEVATED RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

201 Mass. 114

87 N.E. 488

TOMPKINS v. BOSTON ELEVATED RY. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

February 25, 1909

COUNSEL

Jas P. Magenis, for plaintiff.

R. A Stewart and Henry J. Hart, for defendant.

OPINION

RUGG J.

The plaintiff became a passenger upon a surface electric car of the defendant so crowded with passengers that he could not sit or stand inside, and took his place in the front vestibule. He knew of the rule of the defendant printed on the car, that 'persons riding on the platforms do so at their own risk.' Before his journey's end the plaintiff stepped off the car in order to enable some ladies to alight, and as he was trying to get on again he was injured by the sudden starting of the car. The rule referred to was a reasonable one and within the power of the defendant to make. Burns v. Boston Elevated Ry. Co., 183 Mass. 96, 66 N.E. 418; Montgomery v. Buffalo Railway Co., 165 N.Y. 139, 58 N.E. 770. The plaintiff by voluntarily becoming a passenger upon a car so crowded that he could not get inside took the risks incident to transportation under these circumstances. One of these was that of temporarily alighting for the purpose of permitting other passengers to get off the car conveniently. Jacobs v. Boston Elevated Railway Co., 178 Mass. 116, 59 N.E. 639. It has been argued by the plaintiff that his relation as passenger thereby ended. If this should be held, then it did not become re-established for there was no evidence from which it could be found that the plaintiff gave any notice of such intention on his part to those in charge of the car or that they knew of any such intention or effort or offer on his part to that end or that they accepted him as a passenger. Hogner v. Boston Elevated Railway Co., 198 Mass. 260, 84 N.E. 464, 15 L. R. A. (N. S.) 960. But the plaintiff did not cease to be a passenger by leaving the car momentarily for this cause. He could not have been required to pay a new fare. The necessity or courtesy which prompted his action did not terminate his status as passenger. It is notorious that this is one of the common incidents of travel during rush hours. The acceptance of passengers upon cars, so crowded already, created an implication on the part of the defendant that, although some passengers might be obliged for an instant to step to the street for the accommodation of their fellows, the contract for carriage should not be thereby terminated. The plaintiff by taking his position on the front platform of such a car also impliedly contracted with reference to the same obligation resting on him. But he contracted subject to the rule of the defendant that he...