199 Mass. 73 | Mass. | 1908
1. We cannot say that the court erred in allowing the plaintiff to cross-examine the defendant’s conductor as to his understanding of the rules of the defendant relating to the duties of its conductors. The plaintiff did not seek to prove what the rule was, as in Welch v. New York, New Haven, & Hartford Railroad, 176 Mass. 393, and Stevens v. Boston Elevated Railway, 184 Mass. 476. This was not, as in the cases just cited and in Burns v. Worcester Consolidated Street Railway, 193 Mass. 63, a case in which negligence might have been found from the violation of a rule. The plaintiff’s object was to discredit the story of the conductor by showing that, although he had not reported the occurrence in question, he yet understood that under the defendant’s rules it was his duty to make such a report. That is, the plaintiff apparently desired to lay the foundation for an argument that the real reason for the conductor’s failure to" make a report was that the latter could not truthfully have done so without confessing his own misconduct, and so to contend that the conductor’s story told at the trial ought not to be believed. For this purpose, it was not the rule itself, but the conductor’s understanding of the rule, or rather, as the presiding justice correctly put it, his understanding of his duty under the rule, that was material. We find no error here.
2. But we are of opinion that there was error in the ruling made that, while the conductor was not bound to stop the car for the purpose of allowing the plaintiff to get upon it, and would have had the right to interfere with the person of the plaintiff to prevent his being injured, yet he had not the right to do so for the purpose of preventing the plaintiff from getting upon the car; that the conductor had no right to do this, had no right to interfere with the person of the plaintiff to loose the plaintiff’s
In bur opinion the jury should have been instructed as to this part of the case that, if the car had started upon its return trip there was, while it was in motion, no offer to accept any one as a passenger, and the conductor had a right to refuse to accept any one who sought to board the car, and, after such refusal, to use a reasonable degree of force to prevent such a person from boarding and entering the car, and for that purpose to lay hands upon him and interfere with his person, using no more force than was reasonably necessary, though he would have no right to use any excessive or unreasonable force or to attack wantonly any such intending passenger. This is the necessary result of the doctrines laid down in Webster v. Fitchburg Railroad, 161 Mass. 298, and Merrill v. Eastern Railroad, 139 Mass. 238, and is the very point of the decision in Hogner v. Boston Elevated Railway, 198 Mass. 260. So in Solomon v. Manhattan Railway, 31 Hun, 5, 8. If the plaintiff against the resistance of the conductor persisted in his attempt to board the moving car, understanding that the conductor refused to receive him as a passenger, he was a trespasser; Massell v. Boston Elevated Railway, 191 Mass. 491; and the conductor had the right to prevent him from carrying out his wrongful purpose by the use of such force ais was reasonably necessary under the circumstances. If the car was not running for the transportation of passengers at all, but was merely being taken to the car barn to be put up for the night, the plaintiff’s rights would be no greater than already has been stated. For any excessive force or for any wanton or reckless injury, there of course would be a liability. McKeon v. New York, New Haven, & Hartford Railroad, 183 Mass. 271.
Exceptions sustained.
