Negligence. Street Railway. Evidence. A newsboy who jumps on a street car when called by a passenger, having no permission from the railway company to sell papers on the car, is a trespasser, and the company owes him no duty except to refrain from wilfully, wantonly or recklessly exposing him to danger.
In an action by a newsboy, between twelve and thirteen years of age when injured, against a street railway company for personal injuries, it appeared that the plaintiff had been in this country a year, engaged most of the time in selling papers, that he was familiar with the neighborhood where the accident occurred, that he had a license from the city which permitted him to sell newspapers upon the sidewalks and streets but not on the cars of the defendant without its permission and that he did not have such permission, that a passenger in a closed car of the defendant with an open platform in front motioned to him to come, that he ran and got upon the right front step of the car, holding on to the upright rods on each side of the step, with his papers under one arm, that the motorman stepped toward him in a threatening attitude, and made motions to strike him with his arm and to kick him with his foot, saying "to hell out of here," that the plaintiff was frightened and fell to the ground partly under the car, and his right foot was caught under the front wheel and crushed, that the car at the time was going at the rate of about two miles an hour and went only about five feet after the plaintiff fell before it stopped with the wheel over his foot. Held, that a verdict rightly was ordered for the defendant; that, although the language of the motorman was rough and his gestures were threatening, there was nothing in them to intimidate an ordinary newsboy, and that there was no evidence of such wilful, wanton or reckless action on the part of the motorman as would make the defendant liable to a trespasser.
In an action by a newsboy against a street railway company for personal injuries incurred when the plaintiff had jumped on a car of the defendant contrary to a rule of the railway company, the plaintiff cannot be allowed to testify that he frequently had got upon cars of the defendant and sold newspapers without any objection from the conductors and motormen and without being put off, such evidence being immaterial and irrelevant unless it also is shown that the defendant or its officers knew the fact and acquiesced in the violation of the rule.
LATHROP, J.
1. The plaintiff in this case was a trespasser upon a car of the defendant; and the defendant owed him no duty except to refrain from wilfully, wantonly or recklessly exposing him to danger. Banks v. Highland Street Railway, 136 Mass. 485. Planz v. Boston Albany Railroad, 157 Mass. 377, 382. Leonard v. Boston Albany Railroad, 170 Mass. 318, 320. Mugford v. Boston Maine Railroad, 173 Mass. 10. Bjornquist v. Boston Albany Railroad, 185 Mass. 130. Albert v. Boston Elevated Railway, 185 Mass. 210.
While the language used by the motorman was rough and the gestures threatening, it is obvious that the plaintiff had no reasonable ground to believe that the motorman intended to assault him. The car was going at a low rate of speed and came to a dead stop within five feet of the place where the plaintiff attempted to get off. The plaintiff had been a newsboy for a year and was familiar with the streets of Boston. There was nothing in the motorman's words or in his gestures to intimidate an ordinary newsboy. The case is fully covered by the authorities above cited.
2. The evidence offered was rightly excluded, as immaterial and irrelevant. The defendant could not be bound by evidence that other conductors and motormen had allowed the plaintiff to get upon their cars, in the absence of evidence that the defendant or its officers knew the fact and acquiesced in the violation of the rules. Thompson v. Boston Maine Railroad, 153 Mass. 391. Sweetland v. Lynn Boston Railroad, 177 Mass. 574. Boyle v. Columbian Fire Proofing Co. 182 Mass. 93. Brady v. New York, New Haven, Hartford Railroad, 184 Mass. 225.
Exceptions overruled.