Yancey v. Boston Elevated Railway Co. , 205 Mass. 162 ( 1910 )

Braley, J.

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 cross walk, 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 the conductor cannot be reconciled, the jury could find from the plaintiff’s testimony that she crossed the street in her line of travel with the intention of taking passage and, approaching the car from th^t side, stood upon the step, with both hands on the grab irons, holding her crutches, and rapped upon the closed door, and asked for admission, but, although she was seen by the conductor, he shook his head and did' not open the door. A further finding would have been warranted, that, even if she was 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 left hand 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 the defendant’s possession and control. Severy v. Nickerson, 120 Mass. 306. Plummer v. Dill, 156 Mass. 426. See Hogner v. Boston Elevated Railway, 198 Mass. 260, 270. The fact that the plaintiff technically was a trespasser did not absolutely relieve the defendant from the duty to observe proper care toward her or in exercising its own rights so to act as not to injure her unnecessarily. Lovett v. Salem & South Danvers Railroad, 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 the plaintiff’s 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, 184 Mass. 269. Robertson v. Boston & Northern Street Railway, 190 Mass. 108. Hogner v. Boston Elevated Railway, 198 Mass. 260, 270. Donovan v. Hartford Street Railway, 65 Conn. 201. Dale v. Brooklyn City, Hunter’s Point & Prospect Park Railroad, 1 Hun, 146; S. C. 60 N. Y. 638. Kelly v. Consolidated Traction Co. 33 Vroom, 514, 516.

In the description of what followed, if the jury believed the plaintiff, the conductor simultaneously with shaking 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 that the plaintiff was a passenger, but charges the defendant with negligence in the management of the car, and, the evidence being applicable to that count, no error appears in the refusal to give the defendant’s first, second, fourth and twelfth requests; but the sixth request should have been given. Nor should the thirteenth request have been granted. It was not asserted by the plaintiff that an error of judgment had been made in starting the car, but that it was knowingly started with a disregard to her safety, and the defendant’s evidence was simply a denial of the plaintiff’s statement as to the place and cause of the accident. Besides, the jury were plainly told that, if it happened elsewhere and under entirely different conditions, as the defendant contended, the plaintiff could not recover.

The fifth and seventh requests, while correctly stating the law, were fully and accurately covered by the instructions. Graham v. Middleby, 185 Mass. 349.

The second count alleged gross negligence of the defendant in starting the car recklessly and wantonly with gross disregard of the plaintiff’s safety, and the defendant excepted to the refusal to give the third, eighth, ninth, tenth and twelfth requests. We have said that there was evidence for the jury of the defendant’s negligence, and a further inference of fact could have been drawn by the jury, that the conductor, with full knowledge of the situation of the plaintiff, although he might not have fully appreciated her bodily infirmities, gave her no opportunity to alight. The use of unreasonable force, where under the circumstances life or limb may be endangered, can be found to be wilful or reckless and wanton. A trespasser even cannot be wilfully molested, and dealt with to his harm and injury. Planz v. Boston & Albany Railroad, 157 Mass. 377. The conductor, as the defendant’s servant, was in charge of the car, and the defendant was responsible for his acts. Holmes v. Wakefield, 12 Allen, 580. Young v. South Boston Ice Co. 150 Mass. 527, 528. Deliberately and without warning to start the car at a speed, which the jury might find would compel the plaintiff in her crippled condition to fall into the street while it was in motion, resulting perhaps in loss of life itself, the jury could say constituted such a disregard of consequences, which reasonably should have been anticipated, as to amount to wilful misconduct. Gordon v. West End Street Railway, 175 Mass. 181. Aiken v. Holyoke Street Railway, 184 Mass. 269. Banks v. Braman, 188 Mass. 367 (192 Mass. 162, note). Black v. New York, New Haven, & Hartford Railroad, 193 Mass. 448, 452. See Spooner v. Old Colony Street Railway, 190 Mass. 132. The denial of the third, tenth and twelfth requests afforded no ground of exception.

By the eighth and ninth requests the attention of the court was directed to the nature of proof required to sustain the aliegations of the second count. If not called upon to instruct in the language requested, appropriate instructions as to the liability of the defendant under this count were necessary to a correct understanding by the jury of the issue. In the charge no reference whatever is found to the distinction under our decisions between negligence as ordinarily defined and the wilful misconduct which the plaintiff alleged. Black v. New York, New Haven, & Hartford Railroad, 193 Mass. 448, 452. The counts are not defective, as each states a good cause of action, and, the verdict being general, there is no means of knowing on which one the jury found the defendant liable, and assessed damages. James v. Boston Elevated Railway, 201 Mass. 263, 265. The jury, to the defendant’s prejudice, having been improperly left to infer that the plaintiff, even if she was not in the exercise of due care or was a trespasser, could recover if the conductor was shown to have been merely negligent, the exceptions to the refusal to give these requests must be sustained. Bride v. Clark, 161 Mass. 130.

We do not find it necessary to consider the exceptions to the instructions dealing with portions of the testimony, or to the refusal to give certain instructions asked for at the close of the charge. The questions presented may not arise at the second trial, or, if raised, may assume an entirely different aspect.

.Exceptions sustained.