Yancy v. Boston Elevated Ry. Co.
| Citation | 91 N.E. 202,205 Mass. 162 |
| Parties | YANCY v. BOSTON ELEVATED RY. CO. |
| Decision Date | 25 February 1910 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Defendant's requested instructions, which were refused, are as follows:
'(10) The evidence does not show willful and wanton disregard of the plaintiff's rights by the defendant, its agents or servants.
'(12) Even if the conductor did start the car after the plaintiff boarded it, there was no such probability that injury would result to her as to make his act reckless or wanton.
'(13) The defendant is not liable for a mere error of judgment on the part of the conductor.'
William H. Sullivan, for plaintiff.
Frederic H. Chase, for defendant.
The plaintiff, although a young woman, suffered from permanent lameness, owing to a dislocation of the hip. In walking, to lessen the weight upon this hip where an abscess had formed she had been provided with crutches at the hospital from which she was returning to her home at the time of the accident. The car she intended to take had stopped, and remained standing at a crosswalk, with the right-hand rear door of the vestibule open on the side next to the street, through which passengers were entering, while the conductor stood on the platform. But the vestibule door next to the double track was closed. If the evidence of the witnesses as to the conduct of the plaintiff, and conductor, cannot be reconciled, the jury could find, from her testimony, that the plaintiff crossed the street in her line of travel with the intention of taking passage, and approaching the car from that side, stood upon the step, with both hands on the grab iron, holding her crutches, and rapped upon the closed door, and asked for admission, but although seen by the conductor he shook his head, and did not open the door. A further finding would have been warranted that, even if seeking to get on from the farther side of the platform, he must have understood she was attempting to board the car for the purpose of becoming a passenger. But while from his uncontradicted evidence it appeared that under a rule of the defendant the lefthand rear door in the direction in which the car moves is always kept closed, and locked, and only the door on the right is used for the entrance and exit of passengers, a momentary mistake as to the method of entrance, of which the jury could find she was ignorant, did not make her presence on the car wrongful, in the sense that her act up to the time of refusal was an intentional invasion of its possession and control. Severy v. Nickerson, 120 Mass. 306, 21 Am. Rep. 514; Plummer v. Dill, 156 Mass. 426, 31 N.E. 128, 32 Am. St. Rep. 463. See Hogner v. Boston Elevated Railway Co., 198 Mass. 260, 270, 84 N.E. 464, 15 L. R. A. (N. S.) 960. The fact that the plaintiff technically was a trespasser did not absolutely relieve the defendant of the duty to observe proper care towards her or in exercising its own rights so to act as not to injure her unnecessarily. Lovett v. Salem & South Danvers Railroad Co., 9 Allen, 557, 562. The car had been stopped for the reception of passengers, and if it were found that the defendant's servant knew not only of her presence, but of her evident purpose, the defendant owed the plaintiff the duty of exercising reasonable care until at least an opportunity had been given in which she might safely step down. Aiken v. Holyoke Street Railway Co., 184 Mass. 269, 68 N.E. 238; Robertson v. Boston & Northern Street Railway Co., 190 Mass. 108, 76 N.E. 513, 3 L. R. A. (N. S.) 588, 112 Am. St. Rep. 314; Hogner v. Boston Elevated Railway Co., 198 Mass. 260, 270, 84 N.E. 464, 15 L. R. A. (N. S.) 960; Dale v. Brooklyn City, Hunter's Point & Prospect Park R. R. Co., 1 Hun (N. Y.) 146; s. c., 60 N.Y. 638; Donovan v. Hartford Street Railway Co., 65 Conn. 101, 32 A. 350, 29 L. R. A. 297; Kelly v. Consolidated Traction Co., 62 N. J. Law, 514, 516, 41 A. 686. In the description of what followed, if the jury believed the plaintiff, the conductor simultaneously with nodding his head started the car, causing her to be carried a short distance, when being unable to retain her footing she fell off into the street. It was properly left to the jury to decide whether the conductor was so negligent as to make the defendant liable. Nor could it have been rightly ruled, as matter of law, that the plaintiff was careless. It could not have been reasonably anticipated that under such conditions the car would be instantly set in motion. Upon discovery that she had made a mistake when the door was not opened, it could be found that she might assume that the conductor knowing her perilous position would not immediately give the signal to start, but would allow her time to step off. The defendant's requests for rulings, with the exception of the second and third, make no reference to the different counts. The first count does not allege ...
To continue reading
Request your trial