Negligence, Street railway, Licensee. Way, Public: reserved space.
If a pedestrian, for the purpose of waiting for a street railway car at a regular stopping place on Huntington Avenue in Boston on the space reserved by the street commissioners for the location of the street railway under St. 1894, c. 324, such regular stopping place being at a point where there was no cross walk nor any intersection or break in the sidelines and the nearest break or intersection being distant not less than one hundred feet, crosses from a sidewalk over the part of the street used for vehicular traffic and, because of the volume of that traffic and to avoid being struck by it, steps upon the reserved space where, while engaged in taking out his pocketbook preparatory to entering a "pay as you enter" car, he is struck by a street car operated on the adjacent track without reckless or wanton misconduct, he cannot recover in an action against the street railway company for personal injuries so received, his right while upon that part of the reserved space being that of a mere licensee.
BRALEY, J.
It was uncontroverted that Huntington Avenue at the place where the plaintiff was injured was laid out by the street commissioners of the city of Boston under authority conferred by St. 1894, c. 324. The commissioners reserved between the side lines of the layout a special portion or space for the location of a street railway, and the tracks of the defendant were lawfully laid and maintained within the limits of the reservation. It also was unquestioned that, while standing on the reservation where there was no cross walk nor any intersection or break in the sidelines, the nearest break or intersection being distant not less than one hundred feet, the plaintiff was struck and injured by the overhang of an outward bound car.
The plaintiff's own testimony shows that instead of passing through the designated opening to reach the white post where cars regularly stopped to receive passengers, which was twenty-three to twenty-five feet from the sidewalk, he entered upon and passed over the reservation directly to the place where the accident happened. The course taken, even if shorter and previously followed by him, was not the way over which passengers were invited by the defendant to board its cars. If, without deciding, it is assumed there was evidence for the jury of the plaintiff's due care, and of ordinary negligence of the defendant, the plaintiff at most was a bare licensee, and, there being no evidence of wanton or reckless conduct in the operation of the car without which the action cannot be maintained, the trial judge rightly ordered a verdict for the defendant. Freeman v. United Fruit Co. 223 Mass. 300, 302. Crowell v. Boston Elevated Railway, 234 Mass. 393, 396, and cases cited, Treen v. Boston Elevated Railway, 253 Mass. 605.
Exceptions overruled.