Peverly v. City of Boston

Devens, J. That there was evidence tending to show negligence in the arrangement or management of the gates on the boat from which the injury to the plaintiff was occasioned, is not controverted by the defendant. It contends that the plaintiff has failed to show that he was himself in the exercise of due care; that a case of contributory negligence is thus presented, which should prevent his recovery; and that the judge who presided at the trial was not justified in submitting the question to the jury. It is not necessary for the plaintiff to prove due care on his part by directly affirmative evidence; the inference of such care may be drawn from the absence of all appearance of fault, either positive or negative, on his part, in the circumstances [375] under which the injury was received. Mayo v. Boston & Mine Railroad, 104 Mass. 137. The gates were originally provided with locks at the top, which fastened them together, and were further provided at the bottom with a bolt, handle, flange, and catch, by which they were there firmly secured. At the time of the accident, the locks at the top had been removed, and the catch on the bottom was not in working order, so that neither would operate to fasten the gates. How long they had been in this condition did not appear, nor did it appear that the plaintiff was aware of this deficiency in their fastening. He had seen the gates work, knew how they worked, and that there was danger if a man got against them, or put his hand upon them when they were being raised. That which appears as to the plaintiff’s conduct, as testified to by himself, does not show a want of due care such as should bar his recovery, and it might fairly have been inferred from his description that he was in the exercise of it. That the plaintiff was desirous to be among the first to leave the boat, either to take the horse-cars or for any other purpose, would of course afford no excuse for negligently placing himself in any' position of danger. He came out of the cabin, where there was room enough to stay, and passed into the front rank of those who had assembled in the passage leading from the cabin to the gates, so that there was no one between himself and them. He was desirous of getting as near the gates as he could without being injured. The guard-chain, which was attached to a post twenty-five and one half inches from the gates, and intended to be hooked at an angle to a staple on the outside of the boat, by some accident was down, but the plaintiff stood back of it, and over two feet from the gates. The injury occurred by the lifting of the gates, apparently by some unauthorized person, no servant of the defendant being there to operate them, and the sudden movement of the crowd, which pressed the plaintiff against them while they were thus being lifted. That the place occupied by the plaintiff was not intended for passengers, and that they were to keep themselves confined in the cabins until the arrival of the boat, could not have been ruled. That the spaces between the cabins and the end of such boats, [376] although unprovided with seats and only partially covered by a roof, are often occupied by passengers, without objection, during the transit of the boat, and as it approaches the shore, is a matter of common knowledge. It cannot be held, as matter of law, that they are to be deemed so unsafe that one standing there is guilty of a want of due care. It was indeed held in Hickey v. Boston & Lowell Railroad, 14 Allen, 429, on which the defendant relies, that a traveller by railroad cannot maintain an action against a railroad company, to recover damages for a personal injury sustained by him, in consequence of his voluntarily and unnecessarily standing upon the platform of a passenger car while the train is in motion. That case is limited in its application to modes of transportation such as were there considered, and to positions clearly not intended for passengers, such as the plaintiff there occupied. Maguire v. Middlesex Railroad, 115 Mass. 239. Whether the situation, arrangement, and permitted use of the passageway, as it has been termed, were such as to authorize the plaintiff to stand therein, in expectation of the immediate arrival of the boat, and whether, when there, he conducted himself with "ordinary care and prudence, were questions to be decided by the jury. Wheelock v. Boston & Albany Railroad, 105 Mass. 203. Barden v. Boston, Clinton & Fitchburg Railroad, 121 Mass. 426. Worthen v. Grand Trunk Railway, 125 Mass. 99. If he might properly stand in the passageway at all, the fact that he was in the front rank of the passengers was to be considered in connection with the distance at which they all stood from the gates. It would be impossible to say that, because he was in this position, he was therefore legally guilty of negligence. The defendant further contends that, as this accident resulted, except so far as the plaintiff’s own negligence may have contributed thereto, from the acts of unauthorized persons, who threw open the gates, while others pushed the plaintiff against them, the case falls within Joy v. Winnisimmet Company, 114 Mass. 63, and the plaintiff cannot recover. That case rests upon the ground that there was no duty to have the chain so fastened as to prevent passengers from letting it down, and they having done so, by reason of which the plaintiff was induced to leave the boat before the drop was prepared to receive him, [377] the defendant was held not to be liable. But if passengers were liable to be injured by the raising of the gates, there was a duty on the part of the defendant that they should be so locked or guarded by its servants that this should not be done. The evidence that the boat had never approached the wharf before without a deck-hand at the bow of the boat was properly excluded, as was the evidence that no accident had ever happened before by the raising of the gates, or by the pushing of passengers against them. Lewis v. Smith, 107 Mass. 334. Lane v. Boston & Albany Railroad, 112 Mass. 455. Maguire v. Middlesex Railroad, ubi supra. The instructions as given were in conformity with well-settled principles, and the defendant has no just ground of exception to the refusal to rule as requested. Exceptions overruled.