Home AGNES F. LUCA vs. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY.

3 Mass. App. Ct. 718

March 6, 1975

The plaintiff seeks recovery for injuries resulting from a fall suffered while a passenger upon one of the defendant's trolley cars. The trial judge properly allowed the defendant's motion for a directed verdict under leave reserved, as there was no evidence to the effect that the sudden stop was not necessitated by some traffic emergency. Timms v. Old Colony St. Ry. 183 Mass. 193 , 194 (1903). Cuddyer v. Boston Elev. Ry. 314 Mass. 680 , 682-685 (1943). Aronson v. Metropolitan Transit Authy. 340 Mass. 272 , 274-275 (1960). Berger v. Massachusetts Bay Transp. Authy. 355 Mass. 695 , 697 (1969). We are not at liberty, as the plaintiff urges, to depart from the principle of those cases. See Burke v. Toothaker, 1 Mass. App. Ct. 234 , 239 (1973). The plaintiff advances an alternative theory of liability that a common carrier owes a special duty of care to a passenger who is disabled and whose disability is visible and obvious. The plaintiff argues that the defendant committed a breach of such duty of care by failing to give the plaintiff a reasonable opportunity to reach a position of safety before putting the car in motion, citing dicta in Flanagan v. Boston Elev. Ry. 216 Mass. 337 (1914), and Martin v. Boston Elev. Ry. 216 Mass. 361 (1914). The imposition of such a special duty of care, if it exists, would be dependent "not on the mere fact of . . . [the plaintiff's] advanced age, but on the existence of apparent physical impairment on the part of the passenger, such as would make the ordinary start of the car dangerous for her." Martin v. Boston Elev. Ry., supra, at 363. The disability would have to be such that the plaintiff "is deficient in capacity for self-help, such as the condition of one who is feeble, blind, lame, or incumbered." Flanagan v. Boston Elev. Ry., supra, at 339. Even if the dicta in the Flanagan and Martin cases are the law of this jurisdiction, the evidence concerning the plaintiff's weight, age, and use of a cane did not warrant a conclusion that it was visible and obvious to the operator that the plaintiff was so disabled and impaired as to require special care. There is no evidence that the plaintiff walked with a limp or was feeble or restricted in her movements.

Exceptions overruled.

Home SAM HOOTSTEIN & SONS, INC. vs. HARTFORD FIRE INSURANCE COMPANY.

3 Mass. App. Ct. 718

March 7, 1975

In this action to recover damages for the loss of goods taken (by a man posing as a driver for the plaintiff's trucking contractor) from the loading platform where they had been placed awaiting the arrival of the contractor, the trial judge was right in refusing to rule that such recovery was barred by either exclusion 8 or 9 of the insurance policy. Those exclusions, interpreted in accordance with well settled canons of construction (see Palmer v. Pawtucket Mut. Ins. Co. 352 Mass. 304 , 306 [1967], and cases cited; Bulyga v. Underwriters at Lloyd's, London, 1 Mass. App. Ct. 359 , 363 [1973], and cases cited), do not apply where, as here, the imposter made off with the goods before signing the customary bills of lading and in the absence of the plaintiff's employee in charge of the goods (who had gone in search of a pen in order that the necessary signatures could be obtained).

Page 719

Thus, there was no "voluntary parting with . . . possession" of the goods by the plaintiff within the meaning of exclusion 8; possession of the goods remained with the plaintiff at least until they were driven away from the platform, and the plaintiff's employee, though inadvertently facilitating their theft by his temporary absence, did not part with them "voluntar[il]y." See New England Box Co. v. C. & R. Constr. Co. 313 Mass. 696 , 710 (1943); Fireman's Fund Ins. Co. of San Francisco v. McConnell, 198 F. 2d 401, 402-403 (5th Cir. 1952), and cases cited. Nor were the goods ever "entrusted" to the imposter within the meaning of exclusion 9, as the plaintiff's employee did not "commit or surrender" them to the driver (Webster's Third New Intl. Dictionary, p. 759 [1971]). The cases from other jurisdictions relied upon by the defendant are not to the contrary.

Exceptions overruled.