Massell v. Boston Elevated Railway Co.

78 N.E. 108, 191 Mass. 491, 1906 Mass. LEXIS 1311

Opinion

Lathrop, J.

1. The plaintiff in this case was a trespasser upon a car of the defendant; and the defendant owed him no duty except to refrain from wilfully, wantonly or recklessly exposing him to danger. Banks v. Highland Street Railway, 136 Mass. 485. Planz v. Boston & Albany Railroad, 157 Mass. 377, 382. Leonard v. Boston & Albany Railroad, 170 Mass. 318, 320. Mugford v. Boston & Maine Railroad, 173 Mass. 10. Bjornquist v. Boston & Albany Railroad, 185 Mass. 130. Albert v. Boston Elevated Railway, 185 Mass. 210.

While the language used by the motorman was rough and the gestures threatening, it is obvious that the plaintiff had no reasonable ground to believe that the motorman intended to assault him. The car was going at a low rate of speed and came to a dead stop within five feet of the place where the plaintiff attempted to get off. The plaintiff had been a newsboy for a year and was familiar with the streets of Boston. There was nothing in the motorman’s words or in his gestures to intimidate an ordinary newsboy. The case is fully covered by the authorities above cited.

2. The evidence offered was rightly excluded, as immaterial and irrelevant. The defendant could not be bound by evidence that other conductors and motormen had allowed the plaintiff to get upon their cars, in the absence of evidence that the defendant or its officers knew the fact and acquiesced in the violation of the rules. Thompson v. Boston & Maine Railroad, 153 Mass. 391. Sweetland v. Lynn & Boston Railroad, 177 Mass. 574. Boyle v. Columbian Fire Proofing Co. 182 Mass. 93. Brady v. New York, New Haven, & Hartford Railroad, 184 Mass. 225.

Exceptions overruled.