Lockwood v. Boston Elevated Railway Co. , 200 Mass. 537 ( 1909 )

Braley, J.

The defendant’s exceptions to the refusal to give the first, seventh, ninth, tenth, eleventh and twelfth requests must be overruled. It was within the province of the jury to find, upon conflicting evidence, that the plaintiff and his companion Gould, desiring to become passengers, signalled an open car; that, the motorman having inclined his head in response, they started from the sidewalk, and when the car stopped boarded it with the knowledge of the conductor, and. that the plaintiff had reached and stood upon the running board on his way to a seat at the time of the injury. If the jury so found, the relation of passenger and carrier had been established, and the defendant owed to him the duty of taking every reasonable precaution, which might be required for his safe transportation. Millmore v. Boston Elevated Railway, 194 Mass. 323. Rand v. Boston Elevated Railway, 198 Mass. 569. Marshall v. Boston & Worcester Street Railway, 195 Mass. 284.

The conductor, while asserting in his testimony that the car had not been stopped nor the plaintiff been recognized and accepted as a passenger, also stated that he saw him when he boarded the car and that he noticed at the same time the proximity of the wagon passing along in the same direction parallel with the car, with which the car shortly after came into collision. If under these circumstances the conductor gave the signal, or the motorman in the exercise of due diligence should have foreseen that it was dangerous to go ahead, and the car was started before the plaintiff had a reasonable opportunity to reach a seat or a position of safety, this furnished evidence which would warrant a finding that the defendant was negligent. Weeks v. Boston Elevated Railway, 190 Mass. 563. Rand v. Boston Elevated Railway, 198 Mass. 569.

Nor could it have been ruled as matter of law, that the plaintiff was guilty of contributory negligence. If the plaintiff and his companion were believed, the team had passed them before they started from the sidewalk. Ordinarily the man of average prudence neither in taking steps to become, nor after he has been accepted as a passenger by a street railway, pauses deliberately to consider whether, under the usual conditions of public travel, the car will be so operated as to come into contact with a' team which has just passed going in the same direction. A failure to take this precaution, while a matter to be considered by the jury, affords no conclusive presumption of carelessness. Apart from any knowledge he could have been found to have had of the closeness of the team to the running board owing to the street being crowded by traffic, the plaintiff also had a right to rely upon the assumption, that, while he was in the act of getting on and passing to a seat, the defendant’s servants would not start the car until all danger of its running so near to the team as to injure him had passed. Pomeroy v. Boston & Northern Street Railway, 193 Mass. 507, 512.

It is further contended, that the efficient cause of the plaintiff’s injury was the negligence of his companion, with whom he had boarded the car and who, having been first struck by the team while standing on the running board preparatory to taking a seat, was thrown against the plaintiff, forcing him against one of the stanchions from which he was thrown into the street. But, even if the contact of the plaintiff’s companion indirectly forced him off, this fact was not an independent intervening cause which would exonerate the defendant, for, if the collision had not occurred through the defendant’s negligence, the plaintiff would not have been injured. Doe v. Boston & Worcester Street Railway, 195 Mass. 168, 172. Besides, notwithstanding it is assumed to the contrary in argument, the defendant had the benefit of the eleventh request which was given in general terms.^*

It is the defendant’s theory of the injury, upon the evidence which it introduced, that, without having been either recognized or accepted as a passenger, the plaintiff was injured while in the attempt to board a moving car as it was passing between the signal posts. Undoubtedly there must be an acceptance by the carrier, before the person who offers himself, becomes a passenger. But the principle as applied to those who offer themselves for transportation by railroads, whose trains stop only at fixed stations, where the carrier only holds itself out to receive and transport as passengers those who present themselves in the usual way, has not been held applicable to passengers upon street railways, unless at least it appears that the operating company makes a rule that passengers will not be taken on except at designated places. Merrill v. Eastern Railroad, 139 Mass. 238. Webster v. Fitchburg Railroad, 161 Mass. 298. Corlin v. West End Street Railway, 154 Mass. 197. There was no evidence offered by the defendant, that it had made, promulgated or enforced such a rule, or established such a custom. Nor did it appear that the plaintiff had any knowledge of such a regulation inferentially derived from his observation of the placing of signal posts, or of the manner in which its cars were generally operated. McDonough v. Boston Elevated Railway, 191 Mass. 509, 511.

But, even if the car had been boarded while it was moving slowly between the signal posts after the plaintiff had stepped on the running board, the conductor, who testified that he saw the men coming to get on the car and further said that he saw the plaintiff there, gave no order to him not to get on, and made no objection or dissent either verbally or by gesture that he was unlawfully on board. To remain standing on the running board of an open street railway car while being transported is not ordinarily of itself wrongful, and under these conditions the contract of carriage could have been found by the jury to have been complete. Briggs v. Union Street Railway, 148 Mass. 72, 75. Pomeroy v. Boston & Northern Street Railway, 193 Mass. 507, 511, and cases cited.

The exceptions to the instructions under which the case was submitted to the jury are also untenable. A charge is to be considered as a whole in order to determine whether it is legally correct, rather than tested by fragments, which may be open to deserved criticism. In presenting the two theories of the relation of the parties, after having stated the plaintiff’s and the defendant’s respective contentions and instructed the jury as to each, the presiding judge continued, “If you should find that those circumstances did not exist, gentlemen, if you should find, for instance, that the servants of the defendant company did not see them when they signalled the car, or did not know that they were intending to come upon the car as passengers, and in no other way directly or indirectly, either expressly or by implication assented to their becoming passengers upon the car, then you could find that they were not passengers, in which case the company, the defendant company, would not owe them the same degree of care that it would owe to passengers. . . . If you find he did not in any way, you would have the right to find that they were not passengers.” It is urged, that the jury should have been told, that, if they found no express or implied acceptance of the plaintiff as a passenger, they were bound to find for the defendant. The instructions, however, as to whether the plaintiff and the defendant had entered into this relation were explicit, and the jury must have understood fully that the plaintiff could not recover if he stepped and remained upon the running board without having been recognized by the servants of the company as a passenger.

The remaining exceptions are to the exclusion of evidence. If the defendant’s medical expert could not properly have been directly asked, nor permitted to testify, that the nervous prostration from which he had found the plaintiff to be suffering was due to his having an action on hand to recover damages for personal injuries, he could not, under guise of reasons for the opinion which he gave in reply to a proper question, indirectly introduce such evidence. Having done so, the ruling excluding this part of the answer was right. Hunt v. Boston, 152 Mass. 168, 171. The paper containing the written statement, which at the defendant’s request one of its witnesses presumably made on a blank furnished by the company, was rightly excluded, as there was no offer to show what the defendant expected to prove, or even that the witness, whom it apparently intended to contradict, had made a different answer, nor was the paper formally offered in evidence. Magnolia Metal Co. v. Gale, 191 Mass. 487.

Exceptions overruled.

* This request was as follows : “If the proximate cause of Lockwood’s injury was negligence on the part of Gould, then Lockwood cannot recover.’’