Fernald v. Boston Elevated Railway Co.

156 N.E. 692, 260 Mass. 78, 1927 Mass. LEXIS 1228

• Court: Massachusetts Supreme Judicial Court
• Decided: May 23, 1927
• Status: Published

Opinion

Braley, J.

It was uncontroverted that Huntington Avenue at the place where the plaintiff was injured was laid out by the street commissioners of the city of Boston under authority conferred by St. 1894, c. 324. The commissioners reserved between the side Unes of the layout a special portion or space for the location of a street railway, and the tracks of the defendant were lawfully laid and maintained within the limits of the reservation. It also was unquestioned that, while standing on the reservation where there was no cross walk nor any intersection or break in the sidelines, the nearest break or intersection being distant not less than one hundred feet, the plaintiff was struck and injured by the overhang of an outward bound car.

The plaintiff’s own testimony shows that instead of passing through the designated opening to reach the white post where cars regularly stopped to receive passengers, which was twenty-three to twenty-five feet from the sidewalk, he entered upon and passed over the reservation directly to the place where the accident happened. The course taken, even if shorter and previously followed by him, was not the way over which passengers were invited by the defendant to board its cars. If, without deciding, it is assumed there was evidence for the jury of the plaintiff’s due care, and of ordinary negligence of the defendant, the plaintiff at most was a bare licensee, and, there being no evidence of wanton or reckless conduct in the operation of the car without which the action “cannot be maintained, the trial judge rightly ordered a verdict for the defendant. Freeman v. United Fruit Co. 223 Mass. 300, 302. Crowell v. Boston Elevated Railway, 234 Mass. 393, 396, and cases cited, Treen v. Boston Elevated Railway, 253 Mass. 605.

Exceptions overruled.