Murphy v. Union Railway Co.

Devens, J.

The injury to the plaintiff was not received by being ejected from the defendant’s car; according to the evidence in his behalf it occurred by his own act in his struggles to prevent his being ejected therefrom, the car being in rapid motion; while, according to the defendant’s evidence, the injury occurred by the reckless act of the plaintiff before any interference by the conductor or struggle with him, the car not being in motion when the plaintiff left.

The general instruction as to the right and duty of the conductor to eject the plaintiff from the horse-car if he entered it in a state of intoxication and there misbehaved himself, or gave reasonable cause to believe that he would misbehave himself, conformed to the decision of this court in Vinton v. Middlesex Rail road, 11 Allen, 304 .

While the ruling which was afterwards requested by the plaintiff need not have been given in the form in which it was asked, yet a ruling as to the right of a conductor to eject a person misbehaving himself from the car when it was in motion was appropriate to the case, and, if that then given was erroneous, there should be a new trial. This instruction submitted to the jury as a question of fact, to be determined by them upon all the evidence, whether it was due care and a proper exercise of the right to remove the plaintiff, for the conductor to attempt to remove him while the car was in motion. It left the jury to consider the speed at which the car was moving, if moving at all, when the attempt was made to eject the plaintiff, as one of tlie elements in determining whether the conductor acted with due care, and recognized that it would not necessarily follow, from the fact that the car was in motion, that the conductor was guilty of a wrongful act. This was correct.

It is not necessary to consider what should be the rule to he adopted as to steam railroads, as it would by no means follow that the same should be applied to horse railroads. The motive power by which steam railroads are operated is so different and the difficulty of controlling it so much greater, that it has heretofore been considered that certain acts, such as voluntarily and unnecessarily riding on the platform of the cars, must be deemed acts showing a want of due care in the one case, while similar acts would not necessarily be so in the other. Hickey v. Boston Lowell Rail *231 road, 14 Allen, 429 . Meesel v. Lynn & Boston Railroad, 8 Allen, 234 . Maguire v. Middlesex Railroad, 115 Mass. 239 .

It would not be impossible that the speed of a horse-car could be so far slackened that an intruder might at a suitable place be ejected with safety ; and if so, it could not be said as matter of law that it would be a wrongful act to attempt to eject a person, who might otherwise lawfully be ejected, merely because the car was in motion. Whether it would be so or not would be a question of fact, to be determined by the jury in view of the rate of speed at which the car was moving, as well as the other cir cumstances, and it was thus submitted in the present case.

The two cases from our reports relating to horse railroads, relied on by the plaintiff, do not sustain his position. In Lovett v. Salem South Danvers Railroad, 9 Allen, 557 , Chapman, J., in delivering the opinion of the court, recognized it to be the duty of the company in ejecting an intruder, (in that case a child,) to first stop the car or slacken its speed to such a degree that the child, using due care, might leave in safety. In Nichols v. Middlesex Railroad, 106 Mass. 463 , the court held that when a passenger attempted to alight from a horse-car, while the same was in motion, without the knowledge of or notice to those in charge of the car, or their having the means of such knowledge, and tho horses were suddenly started up, by means of which he was injured, he could not recover. But there is no suggestion that if the speed had been slackened to enable him to leave, and then, as he was leaving the car, the horses were suddenly started up, he could not have recovered because it was actually in motion when he made the attempt. In leaving without notice, he could not complain that while so doing the defendant’s servants managed the car without regard to this fact.

Exceptions overruled.