Wakeley v. Boston Elevated Railway Co.

Rugg, C. J. The female plaintiff (hereafter referred to as the plaintiff) was a passenger upon a car of the defendant on Huntington Avenue, going toward Brookline, after dark on an April evening. She was not familiar with the neighborhood. She told the conductor that she desired to go to Oak Square. He replied that she must change at Brookline Village. Shortly after, when the car had stopped two and a half car lengths from a white pole indicating a regular stopping place, the conductor told her [490] to get off and take the car behind, instead of going to Brookline Village. Thereupon, in attempting to step from the running board to the ground, the heel of one foot went into a depression in the ground between a plank or board and the curbing and she was injured. There was evidence tending to show that the plank or board was about two inches wide and extended a considerable distance parallel to the curbing. There was a depression, variously estimated in depth from four to six inches, and ten or twelve inches long, or perhaps longer. At this point the tracks of the defendant ran in a space in the middle of the street reserved for the use of street railways under the authority of St. 1894, c. 324. The conductor did not assist the plaintiff in alighting nor give any warning of the dangerous place into which she stepped. It might have been found that the depression was in shadow and not easily observed in the darkness. Plainly the plaintiff might have been found to have been in the exercise of due care. Keith v. Worcester & Blackstone Valley Street Railway, 196 Mass. 478. There was also evidence from which the jury might have found that the defendant was negligent. Its duty was to exercise the highest degree of care consistent with the conduct of its business, not only in transporting its passengers but in enabling them safely to alight at the end of the journey. The plaintiff’s contract of carriage had not ended. She was transferring at the invitation of the representative of the defendant from one of its cars to another immediately following upon the same track. The relation of passenger and carrier probably was not ended under these circumstances. Tompkins v. Boston Elevated Railway, 201 Mass. 114. See Powers v. Old Colony Street Railway, 201 Mass. 66. But however that may be, the defendant owed at least as high a degree of duty to the plaintiff thus alighting as it would have owed at the end of her journey. Apparently the car of the defendant was not at a regular stopping place, but an appreciable distance away. The express invitation to the plaintiff by the agent of the defendant to change from one car to another under such circumstances and at that place imposed upon him the obligation to give her some warning of the danger which confronted her of stepping into the hole. While it is true that the “ street is in no sense a passenger station, for the safety of which a street railway [491] company is responsible,” Creamer v. West End Street Railway, 156 Mass. 320, 321, yet the combination of conditions here presented required the submission of the question of the. defendant’s negligence to the jury. In this respect the case is distinguishable from Thompson v. Gardner, Westminster & Fitchburg Street Railway, 193 Mass. 133. The hole which caused the plaintiff’s injury might have been found from its physical features to have existed a considerable time before the injury, and hence the case is distinguishable from Rose v. Boston & Northern Street Railway, 194 Mass. 415. The defendant filed interrogatories to the plaintiff, which she was directed to answer. Some of these questions called for a detailed description of precisely how the accident happened. The plaintiff’s exceptions to being required to make these answers are rightly before us. Brooks v. Shaw, 197 Mass. 376. The questions which she thus was compelled to answer were not competent under R. L. c. 173, § 57, as amended by St. 1909, c. 225, in that they required her to disclose the manner in which she proposed to prove her own case. Looney v. Saltonstall, 212 Mass. 69. See, however, St. 1913, c. 815. As these interrogatories were not offered in evidence, the plaintiff suffered no harm for which remedy can now be afforded except that two answers were used in cross-examination for the purpose of contradicting the plaintiff or showing that in the answers then made by her there were important omissions as compared with her testimony at the trial. It was improper to permit the plaintiff to be cross-examined respecting answers which she had been compelled to make, contrary to law. Exceptions sustained.