219 Mass. 341 | Mass. | 1914
The verdict indicates that the jury did not accept the defendant’s version of the accident, which was that the plaintiff’s injury was caused by a sudden and unavoidable act of violence on the part of a drunken man while he was being properly removed from the defendant’s premises. See Cobb v. Boston Elevated Railway, 179 Mass. 212.
There was testimony which, if believed, warranted the jury in finding the following facts: One Henry was drunk and disorderly in the Orient Heights station of the defendant. After some resistance he was placed under arrest by Fitzgerald, a special officer in the defendant’s employ, and was confined in the baggage room to await the arrival of the patrol wagon. Later, Fitzgerald took him along the station platform in the direction of the police wagon, but Henry struggled and grappled with the officer for a distance of thirty or forty feet, when they both fell. Near the end of the scuffle the plaintiff was struck from behind by one or both of the men, and was thrown to the ground.
The jury would be warranted in finding that Fitzgerald should have taken Henry out through the rear door instead of across the platform where there were passengers; or at least that he should have obtained assistance in removing Henry, or have given warning to the plaintiff. In other words they could find that this admitted agent of the defendant, while acting within the scope of his authority, failed to exercise reasonable care under the circumstances, which was the standard of duty imposed upon him by the trial judge without objection. Thayer v. Old Colony Street Railway, 214 Mass. 234.
The issue of the plaintiff’s due care clearly was for the jury. She was a passenger, standing on the platform and looking in the direction from which her train was coming. Presumably the jury believed her story that no warning was given to her and that she knew nothing of any trouble until she heard the scuffling behind her and was knocked down upon the platform.
Exceptions overruled.