222 Mass. 121 | Mass. | 1915
This is an action of tort to recover for the death and conscious suffering of Anthony Kallio, a thirteen year old boy, who received a mortal injury after dark on a January day while
1. The evidence is insufficient to show that the deceased was in the exercise of due care. A boy who is at the least a trespasser, if not also committing a crime, St. 1906, c. 463, Part I, § 64, riding outside the door of a vestibuled electric car in a place not intended for persons to ride, watching for a chance to jump off before he shall be observed by the conductor, is not in the exercise of due care. Kyle v. Boston Elevated Railway, 215 Mass. 260. Godfrey v. Boston Elevated Railway, 215 Mass. 432. In order to recover either for conscious suffering or for death, a plaintiff ordinarily must show that his intestate was in the exercise of due care. St. 1907, c. 392. Hudson v. Lynn & Boston Railroad, 185 Mass. 510. Carney v.
2. There is no evidence that the boy was suffering from such fright as to be relieved of the duty to exercise care. Indeed, there is nothing to indicate that the jump was from fright rather than from his own consciousness of wrongdoing, from desire to avoid a possible arrest, from the ignominy of being detected by the conductor in “hopping cars,” or from other causes. Bothwell v. Boston Elevated Railway, 215 Mass. 467. Mills v. Powers, 216 Mass. 36.
3. The plaintiff has argued that there was evidence of wanton, reckless or wilful wrong by the conductor as a contributing cause of the injury. If it be assumed in the plaintiff’s favor (but without so deciding) that this point is material, there was no error. So far as appears, there were no threats or conduct rightly describable by these words expressive of culpability, which alone in cases to which they are applicable would establish liability on the part of the defendant. The case upon this point is well within the authority of numerous decisions. Bjornquist v. Boston & Albany Railroad, 185 Mass. 130. Albert v. Boston Elevated Railway, 185 Mass. 210. Shelly v. Boston Elevated Railway, 211 Mass. 516. Lebov v. Consolidated Railway, 203 Mass. 380. Mugford v. Boston & Maine Railroad, 173 Mass. 10. Planz v. Boston & Albany Railroad, 157 Mass. 377. Massell v. Boston Elevated Railway, 191 Mass. 491.
Exceptions overruled.