Gray v. Boston & Maine Railroad

168 Mass. 20 | Mass. | 1897

Allen, J.

The defendant contends that there was no evidence that it failed to use reasonable care in the management of the passage. This passage or corridor was a general entrance for passengers and others who were within the implied invitation of the defendant to enter the station ; and it was the defendant’s duty to use reasonable care to keep it safe for them. The trouble came, not from the unexpected act of a stranger, but from the act of one of the defendant’s servants, in ejecting a drunken man." The defendant suggests that the danger of injury of this kind was so remote and improbable that it could not reasonably have been anticipated. This argument would have more force if the act causing the injury had come from a stranger. But it might be found to be negligent management not to keep the corridor free from violent acts of the defendant’s own servants, which were dangerous to persons entering there for legitimate purposes. The defendant also argues that there was no evidence that the plaintiff was a passenger. She testified that she had travelled over this road for fifteen years, had passed through - this passage a great many times, and that after the accident she was helped to the waiting room for ladies, and took the train for home. In the absence of anything to the contrary, it might be inferred that she was within the defendant’s implied invitation to enter there.

The defendant further contends that there was no evidence that their servant was acting within the scope of his employment in ejecting the drunken man. There was evidence tending to show that he was employed specially for the purpose of keeping the men’s waiting room and closet clean and in proper condition, and that it was a part of his duty to keep the room and closet clear from loafers. The jury might well find from the evidence, that in ejecting the drunken man the servant was not “ on a frolic of his own,” (Joel v. Morison, 6 Car. & P. 501,) but was engaged in doing what he was employed to do. If this was so, and if his act of ejecting the drunken man was done for the purpose or as a means of keeping the men’s waiting room clear from persons in that condition, then the defendant might properly be held responsible, even although he might have exceeded his detailed instructions. Southwick v. Estes, 7 Cush. 385. Howe v. Newmarch, 12 Allen, 49. Bowler v. O’Connell, 162 Mass. 319, and cases there cited.

The defendant now suggests that it did not appear at the trial that the drunken man came from the men’s waiting room or closet. A door opened from the corridor into that waiting room, two other doors into the general waiting room, and one at the end of the corridor into the barber’s shop. So far as appears, no doubt was expressed at the trial that the drunken man had been in the men’s waiting room or closet, and the defendant’s servant was not called as a witness. The servant was apparently acting in the performance of what he thought to be his duty, and in the absence of anything to show the contrary, or of any question raised upon the -point at the trial, it might be inferred that the drunken man was found in the men’s waiting room or closet rather than in the barber’s shop or general waiting room.

There was no error in submitting the case to the jury.

Exceptions overruled.