Walsh v. Boston Elevated Ry. Co.

• Decision Date: 26 November 1915
• Citation: Walsh v. Boston Elevated Ry. Co., 222 Mass. 275, 110 N.E. 278 (Mass. 1915)
• Parties: WALSH v. BOSTON ELEVATED RY. CO.
• Court: Supreme Judicial Court of Massachusetts

222 Mass. 275

110 N.E. 278

WALSH

v.BOSTON ELEVATED RY. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 26, 1915.

Exceptions from Superior Court, Suffolk County; Frederick Lawton, Judge.

Actions by John M. Walsh and by Joseph H. MacDonald against the Boston Elevated Railway Company and the Bay State Street Railway Company.Verdicts ordered for defendants, and plaintiffs except.Exceptions sustained.

McDonald & Graham, of Boston, for plaintiff Walsh.

Chas. H. Morris, of Boston, for plaintiff MacDonald.

E. P. Saltonstall, Hurlburt, Jones & Cabot, and Damon E. Hall, all of Boston, for defendants.

CARROLL, J.

This is an action of tort to recover for personal injuries sustained by the plaintiffs while they were riding on a car of the first named defendant.About 5 o'clock in the afternoon of July 13, 1913, the plaintiffs mounted the left-hand running board of an open car, of the Boston Elevated Railway Company on Chelsea street, close to the Charlestown Navy Yard where they were employed.While riding on this running board, they were struck by a car of the defendant in the second action, which was on the adjoining track and moving in an opposite direction.At the time the plaintiffs got upon the open car, above mentioned, the seats were filled, and many passengers were on both running boards.There was evidence, tending to show, that for four or five years previous to this time, at that particular time of the day and in that part of the city, passengers were in the habit of riding on both running boards.Walsh testified:

‘That at the time he boarded the car there were probably ten or a dozen other persons getting on the car, that the seats were all filled, and that passengers were on both running boards; that he boarded on the left-hand running board somewhere around the middle of the car, perhaps a little back of the middle toward the rear; that there were several persons standing on the rear; that there were several persons standing on the running board at the same time; that several persons stood ahead of him on the running board, that is, between where he stood and the front of the car.’

Near Henley street the track curves, and while on this curve the plaintiffs were struck by a box car described as a ‘yellow car,’‘a big box car,’‘wider than the other cars,’‘a very wide car.’

[1] 1.The left-hand running board of an electric car in motion is a place of such obvious danger that under ordinary circumstances a passenger who voluntarily selects such a position, instead of the safer one provided by the carrier, assumes all the risks connected with such a peril, is guilty of contributory negligence and cannot recover compensation for damages caused thereby.It cannot be said, however, in every case, independent of the special facts involved, that a passenger riding in such an exposed place, thereby excuses the carrier from performing his legal duty.The carrier may expressly or impliedly agree to carry him in this part of the conveyance, although not in common use for such a purpose.If there is such an understanding, and sufficient facts appear to warrant this conclusion, it becomes the province of the jury to pass upon the care of the plaintiff and neglect of the defendant.Where the conveyance is so crowded that passengers are on both running boards, where for many years the employés as came from work, at this hour, rode there, with the consent and knowledge of the defendant, the relation of passenger and carrier being established between them, a passenger so riding does not thereby assume the risk of the carrier's negligence, nor is he as matter of law by such an act lacking in the exercise of due care.

In Moody v. Springfield St. Ry., 182 Mass. 159, 65 N. E. 29, the plaintiff, for his own convenience, passed along the left-hand runningboard where there were vacant seats in the car.The judge directed a verdict for the defendant.In sustaining the ruling this court said:

‘There may be circumstances, such as the crowded condition of the car, which justify him in standing or being upon the running board.’

In Twiss v. Boston Elevated Railway, 208 Mass. 108, 94 N. E. 253,32 L. R. A. (N. S.) 728, the plaintiff was injured while on the left-hand running board with the side bar down, in violation of a rule with which he was familiar, which rule provided that no one was allowed to ride on the running board when the bar was down.In addition to this, as a member of the fire department, he was traveling on a pass which permitted him to ride ‘only on the front platform of box and rear platform of open cars,’ while in the present...