Powers v. Old Colony Street Railway Co.

87 N.E. 192, 201 Mass. 66, 1909 Mass. LEXIS 673

Opinion

Knowlton, C. J.

These are two actions of tort, one brought by a woman, to recover for a personal injury, and the other by her husband; to recover for the cost of medical attendance and for other expenses incurred by reason of the injury.

On the line of the defendant’s railway work was going on in the abolition of a grade crossing of the Old Colony Railroad Company, such that the running of the defendant’s cars was interrupted, and it became necessary for passengers to leave the cars, go around an obstruction on foot, and take other cars to continue their travel on the other side. The distance between the cars on the opposite sides of the obstruction, by the route which was regularly travelled, was about five minutes’ walk. By the nearest public highway, it was about a mile and a half. The path used led across private land for about two hundred and twenty feet, and the evidence showed that this was very rough plowed ground, with stones and other irregularities in it, upon which the passengers, by use, had worn a kind of path about four feet wide, which was more or less irregular. The accident happened in the evening, and it was dark. Some of the witnesses said it was extremely dark. The female plaintiff, hereinafter called the plaintiff, struck her foot against a large stone which projected into the path, and she fell and was injured. When the car on which she was riding reached the obstruction, the conductor called, “ All change to forward car,” and the motorman led the way, the passengers, about fifteen in number, following him, most of them in single file. Notwithstanding the presence of two or three electric lights maintained by the defendant not far away, and notwithstanding the fact that the plaintiff had passed over the place previously in the daytime,

Footnotes

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* we think it plain that it was a question for the jury whether she was in the exercise of due care.

The principal question is whether there was evidence of negligence on the part of the defendant. Because of the impossibility of running its cars upon the highway where the work was going on, the defendant was relieved of its obligation to carry passengers in that part of its route, and it might have declined to continue in any relation to them' after they left its car on one side of the obstruction until they were received upon the car on the other side. But it did not choose to do this. The judge ruled, at the defendant’s request, that the plaintiff was not a passenger while passing from one car to the other. It is questionable whether there was not evidence from which the jury might have found that the relation of passenger and carrier was continued while the passengers were passing from one car to the other. However that may be, there was evidence that the defendant voluntarily provided and pointed out a way for them, over which it invited them to pass, and thereby assumed an obligation to make reasonable provision for their safety, having reference to existing conditions. The fact that the defendant had not obtained from the owner a legal right to use the land did not relieve it of the obligation which arose from its relation to the plaintiff, and from the invitation which it gave her to use the place as if the defendant had hired it and provided it for the use of passengers. The defendant had established and was maintaining electric lights for the convenience of passengers walking across this land, and its passengers had been passing over the land several weeks before the accident", under circumstances which amounted to an implied invitation on the part of the defendant to go by this route. The plaintiff might well believe, from the conduct of the defendant, that it had arranged with the owner for the use of his property for this purpose. The fact that, as against the owner, they were all trespassers is immaterial. Carleton v. Franconia Iron & Steel Co. 99 Mass. 216. Kuhlen v. Boston & Northern Street Railway, 193 Mass. 341. Cotant v. Boone Suburban Railway, 125 Iowa, 46. Vicksburg Meridian Railroad v. Howe, 52 Miss. 202. Finseth v. Suburban Railway, 32 Ore. 1. Weld v. New York, Lake Erie Western Railroad, 68 Hun, 249.

Whether the defendant properly performed its duty to make reasonable provision for the safety of the plaintiff, in view of its implied invitation to walk across private land, was a question of fact for the jury. It was for them to consider all the circumstances of the case and determine what was reasonable. The roughness and irregularity of the path, the presence of large stones in or near it, the ease or difficulty of furnishing better light, or of giving effectual warning, were all matters of fact proper for their consideration. This question was rightly submitted to the jury.

The testimony of the motorman that the electricity for the lights was furnished by the defendant, and that on the last trip the lights were shut off by the conductor tended to show that the lights were furnished and maintained and managed by the defendant. It was competent evidence of an invitation to the defendant’s passengers to use this route.

Exceptions overruled.

The plaintiff testified that she had done so “ perhaps five or six times before in the daytime.”