299 Mass. 333 | Mass. | 1938
The plaintiff was a passenger for hire in a taxicab, owned and operated by the defendant who was a common carrier. She was seated on the rear seat. There were five other passengers. When the plaintiff entered the cab, in Dorchester, she told the defendant that she wished to be let off at the corner of Washington and Essex streets in Boston. At Lagrange Street, which is near Essex Street,
The case was tried to a jury upon the auditor’s report and testimony produced at the -trial. At the close of the evidence the plaintiff requested the judge to give the following rulings: “5. If the person who closed the door did so by express or implied authority of the defendant, the defend
The plaintiff having been accepted as a passenger, the defendant became bound to exercise in the management of his cab the highest degree of care required by the circumstances to protect her from injury during transportation. Steverman v. Boston Elevated Railway, 205 Mass. 508. But he was not bound to anticipate every possible peril which might threaten her. He was not an insurer, nor was he obliged to foresee the impossible or highly improbable. Isenberg v. New York, New Haven & Hartford Railroad, 221 Mass. 182. We think it is clear that no relationship of agency is shown between the defendant and the passenger who carelessly slammed the door. It is apparent that this passenger opened the door of the cab for his own purpose and that in closing it he was not acting for the defendant. This act of closing the door presents aspects which, while they do not help the plaintiff, are difficult to understand. This passenger was in the cab at Lagrange Street when the plaintiff told the defendant that she wished to get out at Essex Street. At the Essex Street stop the passenger left the cab and one would assume that if he had heard the plaintiff’s request, he would not have closed the door in her face, to say the least. But whatever there may be to this, we do not think his act of closing the door in the circumstances disclosed was a thing which the defendant should have anticipated. The sequence of events as disclosed by the evidence indicates a series of sudden happenings which reduces the incident to a pure accident. The cab stops at Essex Street, the passenger leaves the cab, the plaintiff reaches for a strap, which is not there, in order to raise herself from the seat, she puts her hand on the door jamb, not noticing where she is putting it, and the door is slammed.
We think the case comes within the principle of Tracy v. Boston Elevated Railway, 217 Mass. 569 (see Hines v. Boston Elevated Railway, 198 Mass. 346; Camp v. Spring, 241 Mich. 700), and is distinguishable from Nichols v. Lynn & Boston Railroad, 168 Mass. 528, Frink v. Boston Elevated Railway, 218 Mass. 121, and Craft v. Boston Elevated Railway, 211 Mass. 374. The plaintiff was not harmed by the judge’s refusal to give her requested rulings.
Exceptions overruled.