Hillman v. Boston Elevated Railway Co.

207 Mass. 478 | Mass. | 1911

Loring, J.

The only question in this case is whether the evidence warranted the jury in finding that the plaintiff in the first action was invited by the defendant to go from one to the other platform in its Sullivan Square station by crossing over an elevated train which was standing between the two platforms to discharge and receive passengers.

Sullivan Square station is primarily a transfer station. Through the centre of it runs the single track of the defendant’s elevated railway. This track runs north and south and is in a pit about four feet below the station platforms. The station platforms are on a level with the platforms of the cars of the elevated trains. Surface cars from and to Somerville and beyond run up an incline on to five tracks with dead ends which are reached from the platform on the west of the pit through which the elevated trains run. Similarly surface cars from and to Everett and Malden run up an incline on to five tracks on the east side of the pit. Passengers who have taken a surface ear at Somerville for a point reached by a surface car running to Everett or Malden have to pass from the west to the east platform which (as we have said) are separated by this pit four feet deep, extending the whole length of the platforms. A subway had been constructed by the defendant for this purpose at the south end of the station, which led down under the pit and up to the platform on the other side. There was a turnstile and ticket office at each, entrance to the subway, and a ticket was given to each passenger on his entering it. There was a sign on the west platform (the platform on which the plaintiffs disembarked) near the entrance to the subway, on which was printed in large letters, “Subway to East Platform,” with an “index hand” pointing to it; and on the ticket office at the entrance another sign, in smaller letters, on which was printed “ Transfer to Surface Cars and East Platform.”

On the morning in question the plaintiff in the first action and her husband (the plaintiff in the second action) left their home in West Somerville to visit their son who lived in Malden. The plaintiff was a woman sixty-eight years of age and her husband (as she testified) was aged, feeble and just recovering from a paralytic shock. When the plaintiff and her husband disembarked at the Sullivan Square station there was an elevated train standing between the two platforms, with the gates on its car platforms open. The plaintiff assisted and guided her husband on to the platform of one of the cars of this train and was about to follow him when another woman crowded in between them. The husband reached the east platform in safety, but as the plaintiff was stepping from the car platform to the east platform of the station the starting gong sounded and the brakeman closed the gate. The plaintiff at once felt that her dress was caught, turned round and tried to free it by pushing on the gate. A guard on the station platform called “ Open the gate,” but before the brakeman who was then looking into the car did so the plaintiff was thrown down and dragged some distance along the platform of the station. The plaintiff testified that she knew the subway was there for the purpose of enabling passengers to go from one platform to the other, but that she did not want to take her husband up and down the two flights of steps; “ that she feared the exertion would be bad for him,” and took the way across the elevated train “ for her own convenience.”

The plaintiff contends that there was evidence in the case which warranted the jury in finding that the defendant had invited her to use the elevated train as she did use it. The evidence on which this contention is based consists of the plaintiff’s testimony that “ she had frequently seen other people use trains as a bridge in crossing from one platform to the other,” and “ she had never seen any signs or notices displayed in the terminal forbidding such crossing by means of the trains, and she had never seen any attempts made by the guards or trainmen to prevent it.” There was testimony from two other witnesses that “ it was a general practice for passengers going from one platform to the other to walk across the platform of the elevated cars standing in the station or through the cars,” meaning through the doors in the middle of the sides of the cars. That “ there were no notices posted by the defendant forbidding people to cross from one platform to the other by means of the trains standing there, and he had never seen any employee of the defendant forbidding any person to use the trains for this purpose or attempting to prevent any one from so using them.” The defendant’s station master testified that “ he had seen people use the elevated trains to cross the tracks; that they had done so every day.” Several of the defendant’s employees testified “ that they had been instructed not to allow people to cross by the trains, and when people asked them how to cross to the further platform they always directed them to use the subway; that passengers used the trains as a means to cross; and that witnesses did not and could not attempt to stop them, because when a person stepped on to the platform of an elevated car it was impossible to tell whether they intended to cross to the other platform or to go inside the car to ride.”

It was said by Chief Justice Bigelow in Sweeny v. Old Colony & Newport Railroad, 10 Allen, 368, 374, that “ a mere passive acquiescence by an owner or occupier in a certain use of his land by others involves no liability.” In Wheelwright v. Boston & Albany Railroad, 135 Mass. 225, 229, it was said by Colburn, J.: “ The most that can be contended, on the evidence, is, that the defendant had tolerated a practice, which the plaintiff and others had adopted, of crossing where she was attempting to cross, without taking any active measures to prevent it. This is far different from an inducement or invitation from the defendant to cross there.” And in Galligan v. Metacomet Manuf. Co. 143 Mass. 527,528, this rule of law was stated by C. Allen, J., in these words: “ Merely abstaining from driving the children off is not an invitation which would impose any duty or responsibility for the condition of the lot.” A number of cases have been since decided on the rule of law thus clearly stated. See Redigan v. Boston & Maine Railroad, 155 Mass. 44; Shea v. Gurney, 163 Mass. 184; Moffatt v. Kenny, 174 Mass. 311; Legge v. New York, New Haven, & Hartford Railroad, 197 Mass. 88; Bowler v. Pacific Mills, 200 Mass. 364; Boden v. Boston Elevated Railway, 205 Mass. 504.

The case at bar comes within this well established principle. In addition there is in this case a point which was relied upon in the decision of the recent case of Bowler v. Pacifie Mills, ubi supra, at p. 365, namely, that it would have been -impracticable if not impossible to prevent persons from using the defendant’s premises as they were used by the plaintiff without interfering with the defendant’s business in the use of its premises in question. The cases of Sweeny v. Old Colony & Newport Railroad, 10 Allen, 368, and Murphy v. Boston & Albany Railroad, 133 Mass. 121, relied on by the plaintiff, were cases depending upon special circumstances which have been fully explained in previous cases. See Bowler v. Pacific Mills, 200 Mass. 364, 366, where the distinction is pointed out and these previous cases are collected.

Exceptions overruled.