310 Mass. 1 | Mass. | 1941
This is an action of tort to recover for personal injuries sustained by the plaintiff as a result of slipping on a spot of saliva about the size of a half dollar upon the step of the defendant’s motor bus, while she was boarding the bus, which had stopped at the South Station in
It is the duty of this court to consider and decide the question of jurisdiction and" not pass to the merits unless it has first been determined that the trial court had jurisdiction over the parties and over the subject matter. Eaton v. Eaton, 233 Mass. 351. Maley v. Fairhaven, 280 Mass. 54. Whiteside v. Merchants National Bank of Boston, 284 Mass. 165. Lord v. Cummings, 303 Mass. 457.
The defendant contends that the action should have been brought in a District Court, and relies upon G. L. (Ter. Ed.) c. 218, § 19, as amended by St. 1934, c. 387, § 1, which, in so far as material, provides that “District courts shall have exclusive original jurisdiction of actions of tort arising out of the operation of a motor vehicle.”
The defendant was engaged in the transportation of passengers by motor vehicles between established terminals along a regular route where passengers board and leave the vehicle in much the same manner as they would an electric street railway car. No contention is made that the defendant was not properly authorized to engage in this business or that the type, construction, equipment and operating condition of the particular vehicle in use at the time of the accident did not conform to the rules and regulations of the department of public utilities or that a permit to operate this vehicle was not duly granted by this department; all in accordance with G. L. (Ter. Ed.) c. 159A. By virtue of this chapter and without considering the nature of its business in the light of common law principles, the defendant was a common carrier of passengers for hire. Eastern Mas
The usual operation of the vehicle as it proceeded along its designated route included the ordinary stops for the reception and discharge of passengers. Such stops were incidental to this mode of travel. The vehicle at the time of the accident was actually engaged in the transportation of passengers and the temporary stop to permit passengers to board it was a necessary part of its operation in conveying persons from place to place within the territory that it traversed. It was said in Cook v. Crowell, 273 Mass. 356, 358, that “It is settled law in this Commonwealth that a driver continues to operate a car on the highway during the time it is stopped in the ordinary course of its operation for soliciting trade or in calling for and delivering merchandise.” See also Commonwealth v. Henry, 229 Mass. 19; Commonwealth v. Clarke, 254 Mass. 566; Jenkins v. North Shore Dye House, Inc. 277 Mass. 440; Di Cecca v. Bucci, 278 Mass. Cochran v. M & M Transportation Co. 112 Fed. (2d) 241.
The plaintiff contends that her cause of action is based upon the negligent maintenance of the bus and not upon its operation. It was undoubtedly the duty of the defendant to exercise the utmost care consistent with the nature of its business to furnish a vehicle that was safe for the use of its passengers. Labrie v. Donham, 243 Mass. 584. Bannister v. Berkshire Street Railway, 301 Mass. 598. That the immediate cause of the accident was the saliva upon the step does not preclude the applicability of the statute which confers upon District Courts “exclusive original jurisdiction of actions of tort arising out of the operation of a motor vehicle.” G. L. (Ter. Ed.) c. 218, § 19, as amended by St. 1934, c. 387, § 1. These words are too plain, direct and apt to permit anyone to mistake the legislative intent. This statute was the means adopted to reduce the number of cases that were being brought in the Superior Court and thus permit the more expeditious dispatch of business by
In accordance with the stipulation, the entry must be
Judgment for the defendant.