Dodge v. Boston & Bangor Steamship Co.

19 N.E. 373, 148 Mass. 207, 1889 Mass. LEXIS 241

• Court: Massachusetts Supreme Judicial Court
• Decided: January 2, 1889
• Status: Published

Opinion

Knowlton, J.

This case presents an important question as to the rights and duties of passengers and common carriers in reference to egress from and ingress to the vehicle of transportation at intermediate points upon a journey. When one has made a contract for passage upon a vehicle of a common carrier, and has presented himself at the proper place to be transported, his right to care and protection begins, and ordinarily it continues until he has arrived at his destination, and reached the point where the carrier is accustomed to receive and discharge passengers. So long as he stands strictly in this relation of a passenger, the carrier is held to the highest degree of care for his safety. While he is upon the premises of the carrier, before he has reached the place designed for use by passengers waiting to be carried, or put himself in readiness for the performance of the contract, the carrier owes him the duty of ordinary care, as he is a person rightfully there by invitation. It has sometimes been said that a passenger at the end of his journey retains the same relation to the carrier until he has left the carrier’s premises. But there are other cases which indicate that the contract of carriage is performed when the passenger at the end of his journey has reached a safe and proper place, where persons seeking to become passengers are regularly received, and passengers are regularly discharged, and that the degree of care to which he is then entitled is less than during the continuance of his contract, as a carrier of goods is held to a liability less strict after they have reached their destination and been put in a freight-house than while they are in transit.

There is sometimes occasion to leave the boat, or car, or. carriage, and return to it again before the contract is fully performed ; and it is necessary to determine what are the rights and duties of the parties at such a time. Whenever performance of the contract in' a usual and proper way necessarily involves leaving a vehicle and returning to it, a passenger is entitled to protection as such, as well while so leaving and returning as at any other time; and this has been held in cases, where, in accordance with arrangements of the railroad companies, passengers by railway left their train to obtain refreshments. Peniston v. Chicago, St. Louis, New Orleans Railroad, 34 La. An. 777. Jeffersonville, Madison, Indianapolis Railroad v. Riley, 39 Ind. 568. So where a railroad company undertakes to carry a passenger a long distance upon its line, and sells him a ticket upon which he may stop at intermediate stations, in getting on and off the train at any station where he chooses to stop he has the rights of a passenger. Of course, during the interval between his departure from the station and his return to it to resume his journey he is not a passenger.

To determine the rights of the parties in every.case, the question to be answered is, What shall they be deemed to have contemplated by their contract? The passenger, without losing his rights while.he is in those places to which the carrier’s care should extend, may do whatever is naturally and ordinarily incidental to his passage. If there are telegraph offices at stations along a railroad, and the carrier furnishes in its cars blanks upon which to write telegraphic messages, and stops its trains at stations long enough to enable passengers conveniently to send such messages, a purchaser of a ticket over the railroad has a right to suppose that his contract permits him to leave his car at a station for the purpose of sending a telegraphic message; and he has the rights of a passenger while alighting from the train for that purpose, and while getting upon it to resume his journey. So of one who leaves a train to obtain refreshment, where it is.reasonable and proper for him so to do, and is consistent with the safe continuance of his journey in a usual way. ..Where one engages transportation for himself by a conveyance which stops from time to time along his route, it may well be implied, in the absence of anything to the contrary, that he has permission to alight for his own convenience at any regular stopping place for passengers, so long as he properly regards all the carrier’s rules and regulations, and provided' that his doing so does not interfere with the carrier in the performance of his duties,

In the case of Keokuk Northern Line Packet Co. v. True, 88 Ill. 608, a plaintiff before reaching his destination was going ashore for his own convenience at a place where the boat stopped two hours, and was injured on the gangway plank. It was held that he was to be treated as a passenger, and that the defendant was bound to use the utmost care for his safety. See also Clussman v. Long Island Railroad, 9 Hun, 618, affirmed in 73 N. Y. 606; Hrebrik v. Carr, 29 Fed. Rep. 298; Dice v. Willamette Transportation & Locks Co. 8 Oregon, 60. In the first of these cases, the defendant was held liable, for a defect in a platform of its station, to a passenger who had left a train to send a telegraphic message; but the court did not decide whether the plaintiff had the rights of a passenger at the time of his injury, or merely those of a person there by invitation. In the second, a passenger who had taken his place on board a steamship started to go on shore to buy some tobacco, and fell from an unsafe plank and was drowned. He was held to have had the rights of a passenger, and his administrator was permitted to recover.

No decision has been cited that conflicts with our views. In State v. Grand Trunk Railway, 58 Maine, 176, the circumstances under which the passenger left the train and remained away from it were such that, applying the principles we have enunciated, he was not a passenger at the time he was killed. The court in that case was not called upon to consider at what point a passenger leaving a car under different circumstances would cease to be such, and at what point he would resume his former relation.

Upon the undisputed facts of the case at bar, we are of opinion that the plaintiff as a passenger could properly go on shore to get his breakfast at Rockland, and that he had a passenger’s right to protection during his egress from the steamer. The first seven of the defendant’s requests for instructions were rightly refused.

The defendant’s tenth request was for an instruction that, if the plaintiff was justified in leaving the steamer as he did, the “ defendant did not owe him so high a degree of care after he had left the steamer and was out upon the slip, as it owed him while he remained upon or within the steamer.” This request referred to the degree of care which the law requires of carriers of passengers, as distinguished from the ordinary care required of men in their common relations to each other. Because a passenger’s life and safety are necessarily intrusted in a great degree to the care of the carrier who transports him, the law deems it reasonable that the carrier should be bound to exercise the utmost care and diligence in providing against those injuries which human care and foresight can guard against. This rule is held not only in our own State and in England, but all over the United States. It applies not only to carriers who use steam railroads, but to those who use horse railroads, stagecoaches, steamboats, and sailing vessels. It applies at all times when, and in all places where, the parties are in the relation to each other of passenger and carrier; and it includes attention to all matters which pertain to the business of carrying the passenger.

In Readhead v. Midland Railway, L. R. 2 Q. B. 412, it is said that a “ carrier of passengers for hire was bound to use the utmost care, skill, and diligence, in everything that concerned the safety of passengers.” In Railroad Co. v. Aspell, 23 Penn. St. 147, carriers of passengers are said to be responsible for “ any species of negligence, however slight, which they or their agents may be guilty of.” In Warren v. Fitchburg Railroad, 8 Allen, 227, the principle was applied to providing for a passenger a safe and convenient way and manner- of access to the train. In Simmons v. New Bedford, Vineyard, & Nantucket Steamboat Co. 97 Mass. 361, it was applied to the duty of a carrier to protect passengers from the misconduct or negligence of other passengers.

Gaynor v. Old Colony & Newport Railway, 100 Mass. 208, was a case where it appeared that the defendant did not provide proper safeguards against injury for a passenger leaving the place where he alighted from the cars. Mr. Justice Colt said, in the opinion : “ The plaintiff was a passenger, and while that relation existed the defendants were bound to exercise towards him the utmost care and diligence in providing against those injuries which can be avoided by human foresight. He was entitled to this protection, so long as he conformed to the reasonable regulations of the company, not only while in the cars, but while upon the premises of the defendants; and this requires of the defendants due regard for the safety of passengers, as well in the location, construction and arrangement of their station buildings, platforms and means of egress, as in their previous transportation.” See also language of Chief Justice Shaw, in McElroy v. Nashua & Lowell Railroad, 4 Cush. 400.

Difficulty in the application of this rule has sometimes come from an improper interpretation of the expressions “ utmost care and diligence,” “ most exact care,” and the like. These do not mean the utmost care and diligence which men are capable of exercising. They mean the utmost care consistent with the nature of the carrier’s undertaking, and with a due regard for all the other matters which ought to be considered in conducting the business. Among these are the speed which is desirable, the prices which passengers can afford to pay, the necessary cost of different devices and provisions for safety, and the relative risk of injury from different possible causes of it. With this interpretation of the rule, the application of it is easy. As applied to every detail, the rule is the same. The degree of care to be used is the highest; that is, in reference to each particular it is the highest which can be exercised in that particular with a reasonable regard to the nature of the undertaking and the requirements of the business in all other particulars. Warren v. Fitchburg Railroad, 8 Allen, 227. Le Barron v. East Boston Ferry, 11 Allen, 312, 315. Taylor v. Grand Trunk Railway, 48 N. H. 304, 316. Tuller v. Talbot, 23 Ill. 357.

It may be assumed that the plaintiff would have ceased for the time to be a passenger if he had left the steamer and gone away for his breakfast. But he was injured before he had completed his exit. Inasmuch as he had a passenger’s right of egress, this request for an instruction was rightly refused. For, while he was a passenger, the degree of care to be exercised towards him did not depend upon whether he was on the steamer, or on the plank or the slip. It was the same in either place. But in determining what is the utmost care and diligence within the meaning of this rule, it is always necessary to consider what is reasonable under the circumstances. The decision in Moreland v. Boston & Providence Railroad, 141 Mass. 31, was made to rest upon the inaccuracy of the instructions as to the degree of care required of passengers, and it is not an authority for the defendant in the present case.

In its eighth request the defendant asked for an instruction as to the rights of a passenger acting in disobedience of an order or regulation of a carrier. The evidence was undisputed, that the defendant had provided a safe and convenient place for passengers to land from the saloon deck, and that the place where the plaintiff was injured was not intended for use by passengers. The judge said in his charge, “ The plaintiff does not now claim that the defendant did not furnish proper means of egress from the saloon deck, nor do I understand that the plaintiff now claims that the defendant intended the gangway which was in fact used by the plaintiff for use by passengers leaving the boat.” We must therefore assume that the court and the parties treated these matters as undisputed facts of the case, and, upon these facts, a warning to the plaintiff not to leave the steamer from the gangway by which he went was a reasonable order or regulation. A passenger is bound to obey all reasonable rules and orders of a carrier in reference to the business. The carrier may assume that he will obey. And the carrier owes him no duty to provide for his safety when acting in disobedience. His neglect of his duty in disobeying, in the absence of a good reason for it, will prevent his recovery for an injury growing out of it.

This request, as applied to the admitted facts of the case, and to a fact which the jury might have found from the evidence, contained a correct statement of the law. Ellis v. Narragansett Steamship Co. 111 Mass. 146. Pennsylvania Railroad v. Zebe, 33 Penn. St. 318. McDonald v. Chicago Northwestern Railroad, 26 Iowa, 124, 142. Gleason v. Goodrich Transportation Co. 32 Wis. 85. We are of opinion that the jury should have been instructed in accordance with it. It was not a request for an instruction merely as to the effect of a part of the evidence upon a particular subject. It was rather a request for a statement of the law applicable to one phase of the case, which involved a consideration of all the evidence relative to that phase of it. And if by the word “ notified,” in the ninth request, was meant the giving of a notification intelligibly, so as to make it understood by the plaintiff, the same considerations apply also to that request. No instructions were given upon this subject, and because of this error the entry must be

Exceptions sustained.