BRALEY, J. The plaintiff, having been accepted as a passenger, was lawfully in the car, and the defendant had undertaken to provide reasonable facilities for his transportation in safety and to protect him from violence, annoyance and discomfort whether arising from disorderly conduct of fellow passengers, or the wrongful interference of its employees, or the intrusion of strangers whose presence by the exercise of due care could have been anticipated and prevented. Jackson v. Old Colony StreetRailway, 206 Mass. 477, 485, 486. Exton v. Central Railroad, 33 Vroom, 7; 34 Vroom, 356. New Jersey Steamboat Co. v. Brockett, 121 U.S. 637. In the performance of this duty the railroad had the right to establish and enforce reasonable regulations for its own protection in the management of its business.

The writ and declaration set forth a cause of action within the jurisdiction of the Superior Court. A corporation can be held liable for assault committed by its servants in the course of their employment, Moore v. Fitchburg Railroad, 4 Gray, 465, Jackson v. Old Colony Street Railway, 206 Mass. 477, 486, and for malicious prosecution instituted pursuant to the general duty of its employee, Reed v. Home Savings Bank, 130 Mass. 443, White v. Apsley Rubber Co. 194 Mass. 97. Plainly the corporation cannot be held liable for acts of persons in operation of its railroad and business under federal control.

The carrier is not required to await the final outbreak with its probable consequences, before taking appropriate action. Connors v. Cunard Steamship Co. 204 Mass. 310, 315. Jackson v. Old Colony Street Railway, 206 Mass. 477, 485. In common with his co-passengers the plaintiff had by the contract of carriage invoked the protection and benefit of this rule, whenever the defendant acting through its conductor in charge of the car deemed its enforcement reasonably necessary.

The plaintiff, whose due care is not questioned, having been a passenger when injured, the defendant was bound to take every reasonable precaution for her transportation in safety, and to protect her against the unlawful violence of other passengers, and of its servants. Jackson v. Old Colony Street Railway, 206 Mass. 477, 485, 486. The place of the accident was a terminal station arranged for the arrival and departure of cars over separate tracks located in the upper and lower sections of the building.

The verdict for the defendant was ordered at the close of all the evidence, but as the jury could have disbelieved the defendant's witnesses so far as their testimony was material, the question is, whether upon the plaintiff's own narrative he could prevail. Having entered the subway station of the defendant and paid his fare with the intention of becoming a passenger, the plaintiff was lawfully on the premises, and, if while passing through the turnstile to take a car its servants unlawfully molested him by physical restraint, the defendant is responsible for the injury. Lockwood v. Boston Elevated Railway, 200 Mass. 537, 544; Jackson v. Old Colony Street Railway, 206 Mass. 477. Nor can the corporation escape liability even if its servants acted as special police officers appointed under the provisions of the St. of 1898, c. 282. By § 2 the defendant is made liable for their official misconduct, to the same extent as for their torts when acting as its employees. The plaintiff testified, that two of the defendant's servants, one of whom was a special police officer, took him into custody, and brought him to the police station where he was charged by the officer with the offense of drunkenness. If the plaintiff was found intoxicated in a public place, "or . . . any place . . . disturbing others by noise," he could be arrested by a police officer without a warrant, and no question seems to have been made by the plaintiff at the trial, nor does he now contend, that the arresting officer was not qualified to act, or that the railway station was not a public place.

The passenger in a public conveyance who has been injured by the negligence of the carrier, may sue for breach of contract if he will, but also at his election in trespass on the case. Jackson v. Old Colony Street Ry., 206 Mass. 477, 485; 92 N.E. 725; Busch v. Interborough R.T. Co., 187 N.Y. 388, 391; 80 N.E. 197; Rich v. New York Central H.R.R. Co., 87 N.Y. 382, 390; Neil v. Flynn Lumber Co., 71 W. Va. 708; 77 S.E. 324; cf. the cases cited in Pollock on Torts (13th ed.), p. 557 et seq. The employee of an interstate carrier injured through the omission to furnish him with safe and suitable appliances may have a remedy under the Federal Employers' Liability Act (45 U.S. Code § 51), or at times under the Safety Appliance Act (45 U.S. Code, §§ 1 to 6), though the omission would not be actionable in the absence of a contract creating the employment.

Common carriers have a duty to provide safe transport for their passengers. Gilmore v. Acme Taxi Co., 349 Mass. 651, 212 N.E.2d 235, 236 (1965) (citing Jackson v. Old Colony St. Ry., 206 Mass. 477, 92 N.E. 725, 727 (1910) ). That duty includes protecting passengers from intentional torts committed by certain agents of the common carrier.

It is clearly the law in Massachusetts that one held to the duty of care of a common carrier is liable for the intentional torts of its employees, including assault upon passengers. Gilmore v. Acme Taxi Co., 349 Mass. 651, 212 N.E.2d 235 (1965); Jackson v. Old Colony Street Railway, 206 Mass. 477, 92 N.E. 725 (1910); Hayne v. Union Street Railway Co., 189 Mass. 551, 76 N.E. 219 (1905). According to the deposition testimony of Milton Smith, president of McGregor-Smith, the Bus Division of McGregor-Smith had about 80 vehicles in service during the 1980-81 school year, 30 of which were used to transport "special needs" students.

Moreover, it is a bedrock principle of Massachusetts case law that civil liability for an assault and battery will not lie if there is a showing of justification or cognizable excuse for the defendant's actions. See Com. v. McKie, 67 Mass. 61, 62-63, 1854 WL 6473 (1854) (holding that while criminal battery requires the government to prove beyond a reasonable doubt that there was no justification for the defendant's actions if the defendant raises such a defense, a defendant under a civil complaint for battery must affirmatively prove his averment of justification or excuse); Blake v. Damon, 103 Mass. 199, 1869 WL 5828 (1869) (holding that "an assault and battery is an unlawful and unjustifiable use of force and violence, however slight, upon the person of another.") (emphasis supplied); Cooper v. McKenna, 124 Mass. 284, 285, 1878 WL 10805 (1878) (holding that absent a defense of legitimate justification, liability for assault and batter will lie); Jackson v. Old Colony St. Ry. Co., 206 Mass. 477, 488, 92 N.E. 725, 728 (1910) (setting aside a verdict for the defendant in an assault and battery action on the basis that the "substantial error of the trial arose from the assumption that under the circumstances verbal provocation was the legal equivalent of justification"). The State Court jury found that the Debtor committed the intentional tort of assault and battery upon Gomes.

Unlike the automobile in Sabatinelli, supra, Town Taxi's school bus was used in the service of a common carrier of passengers and, therefore, carried an implied promise of safe passage. Jackson v. Old Colony St. Ry., 206 Mass. 477, 485-486 (1910). See Gilmore v. Acme Taxi Co., 349 Mass. 651 (1965); Hathaway v. Checker Taxi Co., 321 Mass. 406, 411 (1947).