194 Mass. 323 | Mass. | 1907
The plaintiff, a woman fifty-six years old, testified that she took in Boston an open car of the defendant which was bound for Watertown; that she sat in the sixth seat from the rear of the car, on the extreme left hand, and had a bundle and hand bag with her; that a number of men after-wards boarded the car “at a point before the one where she intended to alight,” and that some of the men remained standing; that she desired to get off at Royal Street in Watertown, and upon her signal to the conductor he stopped the car there; that she got down on the left hand running board and then for the first time attempted to pick up the bundle which she had placed upon the floor of the car; and that while she was in that position the conductor started the car, by reason of which she was thrown to the ground and injured. She was corroborated by several witnesses as to what occurred after she boarded the car. One Blakeney testified that at the time of the accident he was engaged in a dispute with the conductor as to whether the witness had paid his fare. The evidence showed that the accident took place at a few minutes before eleven o’clock, P. M., on Saturday, July 18, 1903, and that the night was very dark. At the time of the trial the conductor was dead, and it was agreed that the only statement made by him before his death was that
It was contended by the defendant that the conductor had waited a reasonable length of time before starting his car, and that under all the circumstances, considering the number of passengers and the length of time that he had waited; it was a question for the jury whether before starting the car he had not done all that was required of him. Upon this point the judge, after stating the question to be whether the conductor exercised “ the highest degree of care that could be exercised under the circumstances to see that she [the plaintiff] had an opportunity to get off and the car was not started until she had had that reasonable opportunity to get off and to take her bundles off,” proceeded thus: “ But the highest degree of care would require the conductor to move if he was not in a position to see whether the passenger was off; the highest degree of care would call upon him to move, and even to the extent of getting off his car if he could not do any other way, to see whether a passenger was off. The question whether the conductor did all he could to see — it is for you to consider. But he ought not to have started the car until the passenger had an opportunity to get off and a reasonable opportunity, and he should have looked out to see whether she was off. It was not enough that he waited a certain length of time.” At the close of the charge the defendant specifically objected to that portion of it wherein it was stated in substance that the highest degree of care required the conductor to move even to the extent of getting off his car to see whether a passenger was off. We have no doubt that in many cases a jury might find that a conductor should move from his car to ascertain whether a passenger was fairly off or fairly on the car. But we understand that by the language of which the defendant complains the judge meant that as matter of law a conductor of a street car does not come up to the requisite degree of care unless he actually sees whether the passenger is fairly off or fairly on the car, as the case may be.
Common carriers are not the insurers of the life or the safety of their passengers. They are held to reasonable care only; and, briefly stated, that care when applied to them means the highest
Applying this to the action of the conductor, it will be seen that on the one hand the rule is not that the conductor of a street car, after waiting a reasonable time for a passenger to get on or off, as the case may be, may start without taking any pains to see whether the passenger is either on or off. The conductor has not performed his duty when he has simply waited a reasonable time. He must exercise reasonable care, as above defined, to see that the passenger is on or off the car. On the other hand, the rule is not that he must absolutely see whether the passenger is on or off. In this, as in every other detail, there is resting upon him the same degree of care, namely, the highest care consistent with the proper transaction of the business; and, if he has exercised that degree of care, he has not been negligent. In the case before us that was the degree of care imposed upon this conductor. The plaintiff has cited to us several text books and cases in support of the proposition laid down by the trial-judge in this case, but in many of them it is plain from the context that when the court says that the conductor must see that the passenger is on or off the meaning is that he must use the
There is some ground for saying that this error was corrected by the court in a subsequent part of the charge, and so no harm was done to the defendant. A careful view of the whole charge, however, satisfies us that the error was not corrected, and the fact that the presiding judge did not strike out or modify the erroneous part even after his attention was specially called to it by the defendant’s exception at the close of the charge, indicates that the judge still adhered to it as a view of the law by which the jury should be guided, and that the jury may properly have so understood. There was a mistrial.
The conclusion to which we have come on this part of the case makes it unnecessary to consider the other exceptions.
Exceptions sustained.