Tompkins v. Boston Elevated Railway Co.

87 N.E. 488, 201 Mass. 114, 1909 Mass. LEXIS 684

• Court: Massachusetts Supreme Judicial Court
• Decided: February 25, 1909
• Status: Published

Opinion

Rugg, J.

The plaintiff became a passenger upon a surface electric car of the defendant so crowded with passengers that he could not sit or stand inside, and took his place in the front vestibule. He knew of the rule of the defendant printed on the car, that “ Persons riding on the platforms do so at their own risk.” Before his journey’s end the plaintiff stepped off the car in order to enable some ladies to alight, and as he was trying to get on again he was injured by the car’s being started suddenly and with more than an ordinary jerk.

The rule referred to was a reasonable one and within the power of the defendant to make. Burns v. Boston Elevated Railway, 183 Mass. 96. Montgomery v. Buffalo Railway, 165 N. Y. 139.

The plaintiff by voluntarily becoming a passenger upon a car so crowded that he could not get inside took the risks incident to transportation under these circumstances. One of these was that of temporarily alighting for the purpose of permitting other passengers to get off the car conveniently. Jacobs v. West End Street Railway, 178 Mass. 116. It has been argued by the plaintiff that his relation as passenger thereby ended. If this should be held, then it did not become re-established, for there was no evidence from which it could be found that the plaintiff gave any notice of such intention on his part to those in charge of the car, or that they knew of any such intention or effort or offer on his part to that end or that they accepted him as a passenger. Hogner v. Boston Elevated Railway, 198 Mass. 260.

But the plaintiff did not cease to be a passenger by leaving the car momentarily for this cause. He could not have been required to pay a new fare. The necessity or courtesy which prompted his action did not terminate his status as passenger. It is notorious that this is one of the common incidents of travel during rush hours. The acceptance of passengers upon cars, so crowded already, created an implication on the part of the defendant that, although some passengers might be obliged for an instant to step to the street for the accommodation of their fellows, the contract for carriage should not thereby be terminated. The plaintiff by taking his position on the front platform of such a car also impliedly contracted with reference to the same obligation resting on him. But he contracted subject to the rule of the defendant that he took all risks from riding on the front platform. One of these risks under the known conditions was that he might for a. moment step off the car and get on again. Under the terms of his contract of carriage he took upon himself the consequences of injury ensuing from this act. Riding “ at his own risk ” could mean nothing less than at the risk of dangers resulting from the negligence of the defendant or its servants. The defendant was in any event, apart from the rule, responsible for no other risks than those arising from its own failure or that of its agents to exercise the highest degree of care as to passengers consistent with the reasonable conduct of its business. It was not an insurer of the safety of its passengers. Hence in order to give any effect to the rule, which under the circumstances became a term of the contract between the plaintiff and defendant, it must be held to exonerate the latter from all injuries which the plaintiff might receive while a passenger upon the front platform. A verdict should therefore have been ordered for the defendant. Hosmer v. Old Colony Railroad, 156 Mass. 506. McDonough v. Boston Elevated Railway, 191 Mass. 509. Pike v. Boston Elevated Railway, 192 Mass. 426.

In accordance with the terms of the report the entry must be

Judgment for the defendant.