Negligence. Street Railway. Practice, Civil, Verdict, Exceptions. A young woman, who is ignorant of a custom existing in a city where she recently has arrived of entering the rear vestibule of a street car by the door on the right hand side while other cars are being operated on a parallel track at the left of the car, is not necessarily a trespasser in attempting to enter such a car as a passenger by standing upon the step leading to the left hand door of the vestibule, which is closed while the right hand door is open, and rapping on the closed door for admission, and, if she is on the car lawfully, the conductor, when he sees her on the step and knows her evident purpose of entering the car, owes her the duty of exercising reasonable care for her protection until at least an opportunity has been given her to step down in safety.
If a young woman, who is suffering from a dislocation of the hip and is carrying crutches which have been furnished to her to lessen the weight upon her hip in walking, being in a city where she is ignorant of a prevailing rule and custom as to entering the rear vestibule of a street car by the door on the right hand side while cars are being operated on a parallel track at the left of the car, stands upon the step leading to the left hand door of the vestibule of such a car with both hands on the grab irons, holding her crutches, and raps upon the closed door for admission, whereupon the conductor, seeing her there, shakes his head and immediately gives the signal to start the car, and the car starts, throwing the young woman to the ground, in an action brought by her against the corporation operating the railway, for her injuries thus caused, it cannot be ruled as matter of law that the plaintiff was negligent in being upon the step at the time of the accident, as it could not reasonably be anticipated that, if the plaintiff was refused admission on that side of the vestibule, the car would be set in motion instantly without allowing her time to step off.
In an action against a corporation operating a street railway, it appeared that the plaintiff was a young woman, who was suffering from a dislocation of the hip and was carrying crutches which had been furnished to her to lessen the weight upon her hip in walking, and that, being ignorant of a prevailing rule and custom that where there are parallel street railway tracks in a street a person must enter the rear vestibule of a street car from the right hand side, she got upon the step leading to the left hand door of the vestibule of such a car with both hands upon the grab irons, holding her crutches, and rapped upon the closed door for admission, and that the conductor, seeing her there, shook his head and immediately gave the signal to start the car, whereupon the car started, and the plaintiff, after being carried a short distance, was unable to retain her footing and fell into the street and was injured. Held, that there was evidence of wilful misconduct on the part of the conductor, in giving the signal to start the car in such a way as to cause the plaintiff in her crippled condition to fall into the street while it was in motion, which would make the defendant liable even if the plaintiff was a trespasser.
In an action against a corporation operating a street railway, for injuries sustained by the plaintiff in falling from the step of a car of the defendant when the plaintiff had been attempting to enter the car by the left hand door of the rear vestibule, which was closed in accordance with a rule of the defendant, and the conductor on refusing to open the door had given at the same time a signal to start the car, which, being obeyed by the motorman, caused the accident, the jury should be instructed that, if they find that the plaintiff was not in the exercise of due care or was a trespasser upon the car, they can find the defendant liable only by finding that the acts of the conductor amounted to wilful and wanton recklessness toward the plaintiff.
In an action against a corporation operating a street railway in Boston, for personal injuries from being thrown from a step of an electric street car of the defendant, it appeared that the plaintiff was a young woman who suffered from permanent lameness owing to a dislocation of the hip and had been furnished at a hospital, from which she was returning, with crutches to lessen the weight upon her hip in walking. It could have been found that the plaintiff was not familiar with the methods of entering street cars in Boston, that she crossed the street and approached from the left hand side a vestibule car of the defendant which was stopping at a street crossing for the admission of passengers, that the left hand door of the rear vestibule of the car, on the side toward the parallel track, was closed and locked in accordance with a rule of the defendant and some persons were getting on or off on the right hand side of the vestibule where the door was open, that the plaintiff approached the car with the intention of entering it as a passenger, that she stood upon the step leading to the door on the left hand side of the vestibule with both hands on the grab irons, holding her crutches, and rapped upon the closed door, asking for admission, that the conductor saw her, but shook his head and did not open the door and at the same time rang the bell for the car to start, which it did, carrying the plaintiff a short distance, when being unable to retain her footing she fell off into the street and was injured. It further could have been found that the conductor must have understood that the plaintiff was attempting to enter the car for the purpose of becoming a passenger. Held, that the plaintiff's mistake as to the method of entering the car, which the jury could find was owing to her ignorance of the rule and custom as to entering from the right hand side, did not necessarily make her presence on the car unlawful, and that, if she was on the car lawfully, the conductor, knowing of her presence and of her evident purpose, owed her the duty of exercising reasonable care for her protection until at least an opportunity had been given her to step down in safety; that it could not be ruled as matter of law that the plaintiff was careless, as it could not have been reasonably anticipated that the car would be set in motion instantly without allowing the plaintiff time to step off; and that there was evidence of wilful misconduct on the part of the conductor in giving the signal to start the car in such a way as to cause the plaintiff in her crippled condition to fall into the street while the car was in motion, which would make the defendant liable even if the plaintiff was not in the exercise of due care or was a trespasser; but that the defendant was entitled to have the jury instructed that to find the defendant liable on this ground the acts of the defendant's servant must be shown to have amounted to wilful and wanton recklessness toward the plaintiff; and, on account of a refusal of the presiding judge to give such an instruction, exceptions of the defendant were sustained after a verdict for the plaintiff.
In an action by a crippled young woman against a corporation operating a street railway, for injuries sustained by the plaintiff in falling from the step of a car of the defendant when the plaintiff had been attempting to enter the car by the door on the left hand side of the rear vestibule, which was closed in accordance with a rule of the defendant, and the conductor on refusing to open the door had given at the same time a signal to start the car, which, being obeyed by the motorman, caused the accident, the declaration contained two counts, the first count seeking to recover on the ground that the plaintiff was upon the step of the car lawfully and was in the exercise of due care and was injured by reason of the negligence of the conductor, and the second count seeking to recover on the ground that, even if the plaintiff was not in the exercise of due care or was a trespasser, the defendant should be held liable because the accident was caused by the wilful misconduct of the conductor in starting the car while the plaintiff was upon the step without giving her time to get off. There was evidence on which it could have been found that the plaintiff was upon the step of the car lawfully and on which it could have been found that the plaintiff was in the exercise of due care. There also was evidence on which it could have been found that the conductor was negligent or it could have been found that he was guilty of wilful misconduct toward the plaintiff. The presiding judge refused to instruct the jury that, if the plaintiff was not in the exercise of due care or was a trespasser upon the step of the car, the defendant could be held liable only in case the acts of the conductor amounted to wilful misconduct toward the plaintiff. The case was submitted on both counts to the jury, who returned a general verdict for the plaintiff. Held, that, as each of the counts stated a good cause of action and the verdict was general, there was no means of knowing on which count the jury had found the defendant liable and had assessed damages; and that, although there was no error as to the first count, the jury might have returned the verdict improperly on the second count, by holding the defendant liable for mere negligence of the conductor, even in case they had found that the plaintiff was not in the exercise of due care or was a trespasser; and therefore that an exception by the defendant to the refusal of the ruling requested must be sustained.
BRALEY, J.
The plaintiff, although a young woman, suffered from permanent lameness, owing to a dislocation of the hip. In walking, to lessen the weight upon this hip where an abscess had formed, she had been provided with crutches at the hospital from which she was returning to her home at the time of the accident. The car she intended to take had stopped, and remained standing at a cross walk, with the right hand rear door of the vestibule open on the side next to the street, through which passengers were entering, while the conductor stood on the platform. But the vestibule door next to the double track was closed. If the evidence of the witnesses as to the conduct of the plaintiff and the conductor cannot be reconciled, the jury could find from the plaintiff's testimony that she crossed the street in her line of travel with the intention of taking passage and, approaching the car from that side, stood upon the step, with both hands on the grab irons, holding her crutches, and rapped upon the closed door, and asked for admission, but, although she was seen by the conductor, he shook his head and did not open the door. A further finding would have been warranted, that, even if she was seeking to get on from the farther side of the platform, he must have understood she was attempting to board the car for the purpose of becoming a passenger. But while from his uncontradicted evidence it appeared, that under a rule of the defendant the left hand rear door in the direction in which the car moves is always kept closed and locked, and only the door on the right is used for the entrance and exit of passengers, a momentary mistake as to the method of entrance, of which the jury could find she was ignorant, did not make her presence on the car wrongful, in the sense that her act up to the time of refusal was an intentional invasion of the defendant's possession and control. Severy v. Nickerson, 120 Mass. 306. Plummer v. Dill, 156 Mass. 426. See Hogner v. Boston Elevated Railway, 198 Mass. 260, 270. The fact that the plaintiff technically was a trespasser did not absolutely relieve the defendant from the duty to observe proper care toward her or in exercising its own rights so to act as not to injure her unnecessarily. Lovett v. Salem South Danvers Railroad, 9 Allen, 557, 562. The car had been stopped for the reception of passengers, and if it were found that the defendant's servant knew not only of the plaintiff's presence but of her evident purpose, the defendant owed the plaintiff the duty of exercising reasonable care until at least an opportunity had been given in which she might safely step down. Aiken v. Holyoke Street Railway, 184 Mass. 269. Robertson v. Boston Northern Street Railway, 190 Mass. 108. Hogner v. Boston Elevated Railway, 198 Mass. 260, 270. Donovan v. Hartford Street Railway, 65 Conn. 201. Dale v. Brooklyn City, Hunter's Point Prospect Park Railroad, 1 Hun, 146; S.C. 60 N.Y. 638. Kelly v. Consolidated Traction Co. 33 Vroom, 514, 516.
In the description of what followed, if the jury believed the plaintiff, the conductor simultaneously with shaking his head started the car, causing her to be carried a short distance when, being unable to retain her footing, she fell off into the street. It was properly left to the jury to decide whether the conductor was so negligent as to make the defendant liable. Nor could it have been rightly ruled as matter of law, that the plaintiff was careless. It could not have been reasonably anticipated that under such conditions the car would be instantly set in motion. Upon discovery that she had made a mistake when the door was not opened, it could be found that she might assume that the conductor, knowing her perilous position, would not immediately give the signal to start, but would allow her time to step off.
The defendant's requests for rulings, with the exception of the second and third, make no reference to the different counts. The first count does not allege that the plaintiff was a passenger, but charges the defendant with negligence in the management of the car, and, the evidence being applicable to that count, no error appears in the refusal to give the defendant's first, second, fourth and twelfth requests; but the sixth request should have been given. Nor should the thirteenth request have been granted. It was not asserted by the plaintiff that an error of judgment had been made in starting the car, but that it was knowingly started with a disregard to her safety, and the defendant's evidence was simply a denial of the plaintiff's statement as to the place and cause of the accident. Besides, the jury were plainly told that, if it happened elsewhere and under entirely different conditions, as the defendant contended, the plaintiff could not recover.
The fifth and seventh requests, while correctly stating the law, were fully and accurately covered by the instructions. Graham v. Middleby, 185 Mass. 349.
The second count alleged gross negligence of the defendant in starting the car recklessly and wantonly with gross disregard of the plaintiff's safety, and the defendant excepted to the refusal to give the third, eighth, ninth, tenth and twelfth requests. We have said that there was evidence for the jury of the defendant's negligence, and a further inference of fact could have been drawn by the jury, that the conductor, with full knowledge of the situation of the plaintiff, although he might not have fully appreciated her bodily infirmities, gave her no opportunity to alight. The use of unreasonable force, where under the circumstances life or limb may be endangered, can be found to be wilful or reckless and wanton. A trespasser even cannot be wilfully molested, and dealt with to his harm and injury. Planz v. Boston Albany Railroad, 157 Mass. 377. The conductor, as the defendant's servant, was in charge of the car, and the defendant was responsible for his acts. Holmes v. Wakefield, 12 Allen, 580. Young v. South Boston Ice Co. 150 Mass. 527, 528. Deliberately and without warning to start the car at a speed, which the jury might find would compel the plaintiff in her crippled condition to fall into the street while it was in motion, resulting perhaps in loss of life itself, the jury could say constituted such a disregard of consequences, which reasonably should have been anticipated, as to amount to wilful misconduct. Gordon v. West End Street Railway, 175 Mass. 181. Aiken v. Holyoke Street Railway, 184 Mass. 269. Banks v. Braman, 188 Mass. 367 ( 192 Mass. 162, note). Black v. New York, New Haven, Hartford Railroad, 193 Mass. 448, 452. See Spooner v. Old Colony Street Railway, 190 Mass. 132. The denial of the third, tenth and twelfth requests afforded no ground of exception.
By the eighth and ninth requests the attention of the court was directed to the nature of proof required to sustain the allegations of the second count. If not called upon to instruct in the language requested, appropriate instructions as to the liability of the defendant under this count were necessary to a correct understanding by the jury of the issue. In the charge no reference whatever is found to the distinction under our decisions between negligence as ordinarily defined and the wilful misconduct which the plaintiff alleged. Black v. New York, New Haven, Hartford Railroad, 193 Mass. 448, 452. The counts are not defective, as each states a good cause of action, and, the verdict being general, there is no means of knowing on which one the jury found the defendant liable, and assessed damages. James v. Boston Elevated Railway, 201 Mass. 263, 265. The jury, to the defendant's prejudice, having been improperly left to infer that the plaintiff, even if she was not in the exercise of due care or was a trespasser, could recover if the conductor was shown to have been merely negligent, the exceptions to the refusal to give these requests must be sustained. Bride v. Clark, 161 Mass. 130.
We do not find it necessary to consider the exceptions to the instructions dealing with portions of the testimony, or to the refusal to give certain instructions asked for at the close of the charge. The questions presented may not arise at the second trial, or, if raised, may assume an entirely different aspect.
Exceptions sustained.