Marshall v. Boston Elevated Railway Co.

88 N.E. 1094, 203 Mass. 40, 1909 Mass. LEXIS 904

Opinion

Loring, J.

Verdicts were ordered for the defendant in both actions at the conclusion of the plaintiff’s case. The plaintiff’s case or liability consisted of a statement of the plaintiff’s intestate and the testimony of one eyewitness.

The statement of the plaintiff’s intestate was that he was stepping on the car, that he put his feet on the car when the conductor rang the bell, and that the jerk of the car threw him on his back.

The testimony of the eyewitness was that the car had stopped, or had almost stopped, at the further side of Windsor Street, at the crossing where the car would stop, meaning where the car would stop for passengers.

Footnotes

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* He further testified that the intestate put his left hand on the handle and his left foot on the step, and was reaching with his right hand when the conductor rang the bell for the car to start; that it started off at a fast speed with a jerk, and that the plaintiff’s intestate was thrown off backward. He also testified that the conductor was in the middle of the car, facing the rear, and that there were eight or ten people in the car at the time.*

. The eyewitness heard no bell rung for the car to stop at Windsor Street. But that is not decisive. If a street car stops, or even comes almost to a stop at the usual place where it stops to take up passengers, an invitation is extended to become a passenger. The car had not wholly stopped in Block v. Worcester, 186 Mass. 526, and yet it was assumed that the jury could have found that the plaintiff had become a passenger. See p. 528. The same conclusion was reached in Lockwood v. Boston Elevated Railway, 200 Mass. 537, 542, 544. The-plaintiff had a right to go to the jury on the question whether he had become a passenger on the principles stated in Webster v. Fitchburg Railroad, 161 Mass. 298, and applied in Gordon v. West End Street Railway, 175 Mass. 181, and in Davey v. Greenfield & Turner’s Falls Street Railway, 177 Mass. 106. See also Hogner v. Boston Elevated Railway, 198 Mass. 260; Lockwood v. Boston Elevated Railway, 200 Mass. 537.

We are however of opinion that the jury were not warranted in finding that the conductor was guilty of gross negligence, and for that reason the presiding judge was right in ordering a verdict for the defendant in the first action.

The plaintiff cites Gordon v. West End Street Railway, 175 Mass. 181, as a decision that on this evidence the jury were warranted in finding gross negligence on the part of the conductor. But in that case the plaintiff’s intestate was a feeble old man, seventy-four years of age, while the plaintiff’s intestate in the case at bar was a strong, healthy young man about eighteen or nineteen years of age.

The exceptions in the first action must be overruled, and those in the second action sustained.

So ordered.

He also testified that he first saw the plaintiff’s intestate standing on the crossing, that he did not see him do anything before he got on the car, and that he did not see whether he signalled or not.

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The eyewitness, in response to the question, asked in cross-examination, " The conductor, so far as you could tell, did n’t see Marshall at all, did he ? ” answered, “ I believe he did.”