McGilvray v. West End Street Railway Co.

41 N.E. 116, 164 Mass. 122, 1895 Mass. LEXIS 190

• Court: Massachusetts Supreme Judicial Court
• Decided: June 21, 1895
• Status: Published

Opinion

Barker, J.

If we assume in favor of the plaintiff that upon the evidence the jury might find that he had paid his fare through to Prospect Street, and that, in addition to his right to remain unmolested upon the public street, he had the right, upon leaving the car which had been switched into the stable, to inquire of the conductor why the contract to carry him to Prospect Street was not carried out, and to enter the stable to ascertain when and how he could be carried to his destination, yet the verdict for the defendant was rightly ordered. The only reasonable inference to be drawn from the whole evidence is, that, while waiting in the public street to take one of the defendant’s cars, he saw fit to engage in an altercation with a person who was in fact one of the defendant’s servants, and received from him an assault which was not made for any purpose which the jury could find to be part of the defendant’s business. The defendant had no control over the place where the plaintiff was, and no duty to protect the plaintiff there from any assaults, although it would be responsible to him for assaults committed upon him there as elsewhere by its servants in the scope of their employment. The suggestion that it could be found within the scope of that employment for a servant to punish him for asserting his rights against the defendant is of course untenable; nor is there in the suggestion that the assault was for the purpose of putting him out of the defendant’s premises sufficient ground to warrant submitting the case to a jury. Exceptions overruled.