Wakeley v. Boston Elevated Ry.
| Decision Date | 20 May 1914 |
| Citation | 105 N.E. 436,217 Mass. 488 |
| Parties | WAKELEY v. BOSTON ELEVATED RY. (two cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Storey, Thorndike, Palmer & Dodge and Harold S. Davis, all of Boston, for plaintiffs.
E. P Saltonstall, of Boston, for defendant.
The female plaintiff (hereafter referred to as the plaintiff) was a passenger upon a car of the defendant on Huntington avenue going toward Brookline, after dark on a June evening. She was not familiar with the neighborhood. She told the conductor that she desired to go to Oak Square, who replied that she must change at Brookline Village. Shortly after, when the car had stopped 2 1/2 car lengths from a white pole indicating a regular stopping place, the conductor told her to get off and take the car behind, instead of going to Brookline Village. Thereupon, in attempting to step from the running board to the ground, the heel of one foot went into a depression in the ground between a plank or board and the curbing and she was injured. There was evidence tending to show that the plank or board was about 2 inches wide and extended a considerable distance parallel to the curbing. There was a depression, variously estimated in depth from 4 to 6 inches, and 10 or 12 inches long, or perhaps longer. At this point the tracks of the defendant ran in a space in the center of the street reserved for the use of street railways under the authority of St. 1894, cc. 324, 416. The conductor did not assist the plaintiff in alighting nor give any warning of the dangerous place into which she stepped. It might have been found that the depression was in shadow and not easily observed in the darkness.
Plainly the plaintiff might have been found to have been in the exercise of due care. Keith v. Worcester & Blackstone Valley St. Ry., 196 Mass. 478, 82 N.E. 680, 14 L. R. A. (N. S.) 648.
There was also evidence from which the jury might have found that the defendant was negligent. Its duty was to exercise the highest degree of care consistent with the conduct of its business, not only in transporting its passengers but in enabling them safely to alight at the end of the journey. The plaintiff's contract of carriage had not ended. She was transferring at the invitation of the representative of the defendant from one of its cars to another immediately following upon the same track. The relation of passenger and carrier probably was not ended under these circumstances. Tompkins v. Boston Elev. Ry., 201 Mass. 114, 87 N.E 488, 20 L. R. A. (N. S.) 1063, 131 Am. St. Rep. 392. See Powers v. Old Colony St. Ry., 201 Mass. 66, 87 N.E. 192. But however that may be, the defendant owed at least as high a degree of duty to the plaintiff thus alighting as it would have owed at the end of her journey. Apparently the car of the defendant was not at a regular stopping place, but an appreciable distance away. The express invitation to the plaintiff by the agent of the defendant to change from one car to another under such circumstances and at that place imposed upon him the obligation to give her some warning of the danger which confronted her of stepping into the hole,...
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