285 Mass. 121 | Mass. | 1934
This is an action of contract to recover for personal injuries to the plaintiff, received by her on December 29, 1931. At the close of all the evidence the judge directed the jury to return a verdict for the defendant. The case is before this court on the plaintiff’s exceptions
The declaration in the action reads as follows: “And the plaintiff says that the defendant is a street railway company engaged as a common carrier, to transport persons for hire; that on or about December 29, 1931, in consideration of the fare paid by the plaintiff to the defendant, the defendant agreed to carry and transport the plaintiff; that in pursuance of said contract, the plaintiff boarded an outbound Franklin Park car at Andrew Square; that the defendant, its agents or servants was bound to exercise the highest degree of care in enabling and permitting the plaintiff, as a passenger, to alight from said car; that in violation of the duty imposed under said contract, the defendant by its agents or servants failed to stop said car at a regular stopping place, but traveled beyond such place, to a place of danger, and that without warning permitted the plaintiff to alight; that because of the dangerous condition of the ground at the stopping place, and because of the breach of duty of the defendant, its agents or servants, towards the plaintiff as aforesaid, the plaintiff broke and sprained her foot, suffered great pain both in body and mind, was confined to bed and at her home, was unable to work for a long period of time, and was otherwise greatly damaged as she alleges in her writ.”
In support of the declaration, the plaintiff at the trial introduced evidence which would warrant the jury in finding that on December 29, 1931, at about 5:30 p.m., the plaintiff, a woman, boarded an outbound Franklin Park car of the defendant at said Andrew Square, Boston; that her destination was the stop at the corner of Stanwood Street and Columbia Road, Dorchester; that when the car reached Devon Street, a block before her destination, she pressed a button near her seat as a signal for the motorman to stop at Stanwood Street, and “then walked toward the front of the car to alight”; that she was close to the motorman when the car was about thirty feet from the regular stopping place at Stanwood Street, and said to him “Please, next stop”; that the car did not stop when Stanwood
A passenger, ready and willing to pay a common carrier the amount which it was legally entitled to receive for carriage, who receives an injury while so travelling in consequence of the negligence or misconduct of the carrier or of his driver or servant, may, at his election, sue the carrier' on the contract implied in law for conveyance or in tort, the measure of the carrier’s duty being the same in either form of action. McElroy v. Nashua & Lowell Railroad, 4 Cush. 400. Eaton v. Boston & Lowell Railroad, 11 Allen, 500, 505. The declaration does not allege, and there is no evidence reported to warrant a finding, that the step of the car from which the plaintiff alighted was improper in design or construction when considered in relation to the practical operation of the defendant’s business. Nor is there any allegation in the declaration, or evidence to support a finding, that the reservation at the point or near the place where the car stopped was a place which, by reason of its contour or relation to surrounding conditions, was a place unsuitable for the discharge of passengers. The contention of the plaintiff is that the motorman, in view of the unusual distance of the step from the .ground and the soggy condition of the reservation at the place where the car stopped, was guilty of negligence in not warning her of the danger in alighting or in not assisting her off the car.
The evidence required the finding that the car was stopped by the motorman about one hundred feet beyond the place where the plaintiff requested that it be stopped; that she knew when the car stopped that it had passed the stopping place at Stanwood Street, and there was nothing, save the darkness, to indicate to the plaintiff or to the motorman that the height of the step made the place of alighting one of danger. It is settled that ordinarily it is not the duty of a motorman or other servant of a carrier to assist passengers to alight when, as here, no request for aid is made and the necessity therefor is not apparent. Gatchell v. Boston Elevated Railway, 238 Mass. 185, 186-187. Kinnarney v. Mil
Exceptions overruled.