Albert v. Boston Elevated Railway Co. , 185 Mass. 210 ( 1904 )

Knowltoít, C. J.

The plaintiff, a newsboy twelve years of age, jumped upon the running board of an ordinary open street car as it was passing through Congress Street near State Street in Boston, for the purpose of selling his papers. He testified that he was in the habit of jumping on and off such cars when they were in motion. The testimony showed that the car was going at about its usual rate of speed, which we suppose was not great in that busy part of the city. There was no evidence that the speed was increased or diminished after he attempted to get on until after the accident. As he was changing hands and trying to get out a paper to deliver to a man who sat near the middle of the car, he fell off, or intentionally jumped off and was injured. There was testimony that the conductor, who was standing on the rear platform, made a motion and said something which the plaintiff did not understand, but thought was, “ Get out of here,” or “ Get off,” and that the plaintiff, being frightened, jumped off. He was on the running board but a very short time. To use his expression, “It all happened in a jiffy.”

The plaintiff was a trespasser. His only right on the defendant’s cars to sell newspapers at any time was under a contract between the defendant and his employer, in which it was stipulated that “ newsboys shall enter and leave the cars by the rear platform and while- said cars are not in motion and not otherwise.” To him as a trespasser the defendant owed no duty except to refrain from wilfully or recklessly and wantonly exposing him to injury. Metcalfe v. Cunard Steamship Co. 147 Mass. 66. Heinlein v. Boston & Providence Railroad, 147 Mass. 136. Reardon v. Thompson, 149 Mass. 267. In speaking to the plaintiff the conductor was only trying to enforce the rule which the plaintiff was violating. He was not near the plaintiff, who was in the middle of the car. He had no reason to expect that his command would cause the plaintiff serious injury. There was no evidence that he acted wantonly or recklessly in telling the plaintiff to get off. The case is fully covered by Mugford v. Boston & Maine Railroad, 173 Mass. 10, and by Bjornquist v. Boston & Albany Railroad, ante, 130. See also Leonard v. Boston & Albany Railroad, 170 Mass. 318 ; Planz v. Boston & Albany Railroad, 157 Mass. 377.

Exceptions overruled.