Hogner v. Boston Elevated Railway Co. , 198 Mass. 260 ( 1908 )

Hammond, J.

This is an action of tort in which the plaintiff seeks to recover damages for being forcibly removed from one of the defendant’s cars after he had boarded it. The declaration contains two counts, in each of which the assault is alleged to have been committed while the plaintiff was “ attempting to board . . . [the car] ... to ride upon the same as a passenger for hire.”

As is usual in such cases, the evidence as to the details was conflicting. The evidence introduced by the plaintiff tended to show that by reason of a surgical operation which had been recently performed upon his back, from the effects of which he had not fully recovered, he was somewhat infirm; that upon his signal the car stopped for him, with the rear platform right in front of him; that he took hold of the “ grab handles ” and got upon the lower step; that there were three or four passengers in the vestibule; that he asked one of them to let him take hold of the switch box, saying he was a sick man and needed to help himself up in that way; that they only laughed at him; that with both feet still on the lower step he asked the conductor, who was standing “ half way in the rear opening and leaning forward,” for permission to take hold of him, saying to him, “ I am sick and have a sore back and do not dare to bend the back" ; that the conductor said to him, “ You are not sick, you do not appear as a sick man,” and ordered him off; and that he, the plaintiff, was forcibly removed from the lower step to the ground by the conductor and motorman.

The evidence for the defendant tended to show as follows: “ That the plaintiff signalled the car at Townsend Street and swung on while the car was still in motion. When the plaintiff had so swung on and was standing on the lower step, he made motions to a passenger who was standing between the controller and the step to move over, at the same time uttering some incoherent words which the conductor and passenger could not fully understand about his sick back. He finally grabbed hold of the coat of this passenger, who had refused to move from his position, and opened two or three buttons of his coat. The conductor then asked what the trouble was and told the plaintiff to come into the car off the step. The plaintiff rode from Townsend Street to Marcella Street on the lower step of the car holding on to the grab irons. During this time the conductor repeatedly told the plaintiff that he 'could not ride there but must get on or get off.’

“ The evidence further showed that this happening took place during the rush hours, and that the conductor offered to assist the plaintiff, but that the plaintiff repulsed all offers. Although repeatedly told that he could not ride on the step and he must get either on or off, the plaintiff paid no attention to the conductor’s requests. It further appeared that there was plenty of room for him to enter the car and plenty of seats inside. The plaintiff during all the time he was on the car remained on the lower car step in violation of the rules of the company, and refused to get on or off and stood so that no one could enter or leave the car. When the car approached Marcella Street the .plaintiff having refused to enter the car or come off the step, the conductor gave three bells for an immediate stop and called for assistance to remove the plaintiff. The plaintiff was again asked to get off the step or get on the car, and still refused.

“ The motorman of this car and the motorman of the second car behind came to the conductor’s assistance and asked the plaintiff to obey the conductor’s requests and avoid any trouble. The plaintiff still refused and was removed. After they got the plaintiff down into the street, they removed him to a position about in the gutter. The plaintiff grabbed hold of the conductor and struck at him with an umbrella. The car then proceeded.”

One of the questions was whether the plaintiff had become a passenger. “ One becomes a passenger on a railroad when he puts himself into the care of the railroad company to be transported under a contract, and is received and accepted as a passenger by the company. There is hardly ever any formal act of delivery of one’s person into the care of the carrier, or of acceptance by the carrier of one who presents himself for transportation, and so the existence of the relation of passenger and carrier is commonly to be implied from circumstances. These circumstances must be such as to warrant an implication that the one has offered himself to be carried on a trip about to be made, and that the other has accepted his offer, and has received him to be properly cared for. ... A railroad company holds itself out as ready to receive as passengers all persons who present themselves in a proper condition, and in a proper manner, at a proper place to be carried. It invites everybody to come who is willing to be governed by its rules and regulations. In a case like this, the question is whether the person has presented himself in readiness to be carried under such circumstances in reference to time, place, manner, and condition that the railroad company must be deemed to have accepted him as a passenger.” Knowlton, J., in Webster v. Fitchburg Railroad, 161 Mass. 298, 299, 300. The relation of carrier and passenger is created by contract express or implied. In the case of a street railway company, it is rarely created by express contract when the car is boarded by the passenger from the street. Whether the relation has begun is generally to be shown by the circumstances. But, however shown, it must appear at least that the passenger has offered himself and has been accepted. It is not enough that he has offered himself. The acceptance by the carrier is needed. It is true that the carrier ought to consent where there is no reasonable objection. Still it does not necessarily follow that it has consented or will consent in any given case. For no good reason it may decline to accept the offered passenger; and in such case he cannot become a passenger by forcing his way upon the car against the will of the carrier. His remedy is by way of damages for the unwarrantable refusal to accept him. These principles are too familiar to require the citation of authorities in their support.

Upon the evidence the question whether the plaintiff was a passenger was for the jury. If the evidence for the defendant was believed, the jury might find that neither by the motorman nor by the conductor was the plaintiff recognized as a proposed passenger, much less accepted as such; but that the plaintiff, without the knowledge of either, got upon the step of the car while it was in motion, and that the conductor, as soon as he saw him, refused to accept him as a passenger unless he would get above the lower step where he was standing, and that the plaintiff refused to accept this condition. If such was the case, the jury might well find that the contract of carriage never had been made, or in other words, that the plaintiff never became a passenger. The plaintiff, relying upon cases like Brien v. Bennett, 8 Car. & P. 724, Gordon v. West End Street Railway, 175 Mass. 181, and Smith v. St. Paul City Railway, 32 Minn. 1, strongly contends that as matter of law the plaintiff became a passenger as soon as he got upon the step. In all those cases, however, it appeared that the car or vehicle had stopped in obedience to a signal from the proposed passenger. In other words, the passenger had offered himself and been accepted; and the act of getting upon the step was an act done in pursuance of the contract. Thes„e and similar cases cannot be regarded as authorities in support of the proposition that upon the evidence in this case the plaintiff became a passenger as soon as he stepped upon the car.

Upon an examination of the charge to the jury it appears that the judge stated the law in accordance with the principles above set forth; and, while the illustrations were somewhat graphic, and while some of the expressions of the judge when considered apart from their setting might seem to be misleading, yet that when the charge is considered as a whole and these expressions are considered in their proper setting, the judge fairly left the case to the jury upon correct instructions and made no error in law.

Upon the whole evidence the questions also as to whether the plaintiff, whether or not a passenger, was removed from the car for proper cause and in a proper manner, were left to the jury upon instructions not erroneous in law.

Exceptions overruled.