JOSEPH LEBOV v. CONSOLIDATED RAILWAY COMPANY. MOSES LEBOV v. SAME.

Sheldon, J. The plaintiff in the first named case, hereinafter called the plaintiff, was a trespasser upon the defendant's car, and the defendant and its servants owed him no other duty than to refrain from wilfully or recklessly and wantonly exposing him to injury. Albert v. Boston Elevated Railway, 185 Mass. 210, and cases cited. Massell v. Boston Elevated Railway, 191 Mass. 491. McManus v. Thing, 194 Mass. 362. Those of our decisions which are relied on by the plaintiff are not at variance with this rule. In Lovett v. Salem & South Danvers Railroad, 9 Allen 557, there was evidence that the conductor, so far as he could do so, had accepted the plaintiff and his companion as passengers by telling them to go on the front of the car. The plaintiff also testified that he saw the driver, who stood by him on the front platform, move his hand, and thought that he felt the driver's hand or foot when the latter told him to get off; and this would tend to show an assault which might constitute wanton or reckless conduct of the driver. Knowlton, C. J., in Bjornquist v. Boston & Albany Railroad, 185 Mass. 130, 132. In Murphy v. Union Railway, 118 Mass. 228, the plaintiff was not a trespasser, but a passenger, although by reason of his offensive condition the conductor had a right to remove him from the car. Vinton v. Middlesex Railroad, 11 Allen 304. In Hudson v. Lynn & Boston Railroad, 178 Mass. 64, and 185 Mass. 510, a recovery was allowed only for the actual assault committed upon the plaintiff's intestate. In McKeon v. New York, New Haven, & Hartford Railroad, 183 Mass. 271, the defendant was held merely for the reckless act of its brakeman in pushing the plaintiff off its car while the train was moving "pretty fast." So in Rounds v. Delaware, Lackawanna & Western Railroad, 64 N. Y. 129, the plaintiff was kicked from the car by the defendant's servant. In Aiken v. Holyoke Street Railway, 184 Mass. 269, the ground

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of recovery was the wanton and reckless act of the defendant's motorman in suddenly starting his car at full speed around a curve, while he knew that the plaintiff, a boy less than seven years of age, was standing in a dangerous position upon the step and crying to the motorman to let him off. Foley v. West End Street Railway, 195 Mass. 332, turned on the point that the jury might believe the plaintiff's testimony, and so find that he was not a trespasser on the defendant's car, and did not voluntarily jump off in order to avoid the conductor. But that is exactly what this plaintiff did do.

But it is contended that the jury might find in this case that the conductor's conduct was wilful, wanton and reckless, on the ground that he used towards the plaintiff such threatening words and gestures as to cause in the plaintiff's mind reasonable apprehension that the conductor would immediately assault him or would throw him from the car while it was in rapid motion, and that it was because of such reasonable apprehension that the plaintiff jumped from the car, fell under it, and was injured. This contention makes it necessary to consider the state of affairs which was shown at the trial.

The plaintiff, at the corner of Church and Chapel Streets, apparently a busy place in the city of New Haven, Connecticut, jumped upon an open street car of the defendant, for the purpose of selling newspapers. There was here a double track, and he got upon the left side of the car, where an adjustable bar was in place to prevent any one from entering the car on that side. The car was then standing still, but started at once. The conductor, who was standing on the rear platform, shouted to the plaintiff, and made a motion with his left hand, which the plaintiff rightly understood to be an order to get off the car. When the plaintiff disobeyed this order, the conductor left the platform, went along the right side of the car until he got opposite to the plaintiff, put his foot into the car, spoke again to the plaintiff and motioned with his hands. The plaintiff still remained in his position; the conductor, as the plaintiff testified, "was about to put his right foot in and he hollered something to me again, and he could almost reach me with his hand, and I jumped off." He further testified that the conductor looked angry, or "mad"; and that he thought the conductor

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was going to push him off, and jumped off for that reason. During the whole occurrence the conductor was on the right hand side of the car, separated from the plaintiff by the whole width of the car. The car was running with some speed when the plaintiff jumped.

On these facts, the plaintiffs contention cannot be sustained. His position upon the car, standing upon the running board where by reason of the bar he could not enter the car and was liable, as he stood with his papers under his arm, to be hit and hurt by cars that might pass upon the other track, was dangerous, and one that the conductor ought not to allow him to occupy. Moreover, he ought not to have been upon the car at all. The conductor's duty to the company, as well as a proper concern for the plaintiffs own safety, required him to see that the plaintiff did not remain there. The language of the present Chief Justice in Bjornquist v. Boston & Albany Railroad, 185 Mass. 130, 132-134, is peculiarly applicable here. Nor did this conductor use language even as violent as was testified to in that case and held to be insufficient to justify a finding of wilful and wanton conduct. Indeed, upon the vital question involved, this case is much stronger for the defendant than was that one. It was expressly found there, as upon the testimony is claimed to have been the case here, that the car was moving at a dangerous rate of speed for the plaintiff. There was nothing to show that the conductor's gesture testified to was anything more than a waving of his hand. We see nothing in his conduct which justified on the part of the plaintiff a reasonable apprehension of violence, or any other fear than that which arose from his manifest consciousness of his own wrongdoing. Planz v. Boston & Albany Railroad, 157 Mass. 377, 381.

In Albert v. Boston Elevated Railway, 185 Mass. 210, the language and conduct of the conductor were very similar to those here testified to. There as here the conductor was at some distance from the plaintiff. Here as there it cannot be said that he had reason to expect that his command would cause the plaintiff serious injury. The only substantial difference between the cases is that there it did not appear that the speed of the car was increased or diminished after the plaintiffs attempt to get on and before the happening of the accident . But

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the natural and gradual increase of speed after starting within such limits as were here testified to was treated as an immaterial circumstance in Planz v. Boston & Albany Railroad, 157 Mass. 377, 380.

The plaintiff in the case of Mugford v. Boston & Maine Railroad, 173 Mass. 10, was about two years younger than this plaintiff. He was ordered by a brakeman to get off a freight, train which, according to some of the evidence, was going at the rate of eight miles an hour. The highest rate of speed testified to in the case at bar was seven to eight miles an hour. The brakeman in that case was as near to the plaintiff, and his gestures were as threatening, as was testified to of the conductor in this case; but that plaintiff was not allowed to recover.

In our opinion, these cases must be governed by the rule laid down in Albert v. Boston Elevated Railway, 185 Mass. 210, and Massell v. Boston Elevated Railway, 191 Mass. 491. See also Anternoitz v. New York, New Haven, & Hartford Railroad, 193 Mass. 542; Leonard v. Boston & Albany Railroad, 170 Mass. 318; Sullivan v. Boston Elevated Railway, 199 Mass. 73, 76.

Exceptions overruled.