173 Mass. 40 (1899), Gannon v. New York, N.H. & H.R. Co.

Citation173 Mass. 40, 52 N.E. 1075
Opinion JudgeHOLMES, J.
Party NameGANNON v. NEW YORK, N.H. & H.R. CO.
Attorney[52 N.E. 1075] H.H. Baker, for plaintiff. H.P. Harriman, for defendant.
Case DateMarch 03, 1899
CourtSupreme Judicial Court of Massachusetts

Page 40

173 Mass. 40 (1899)

52 N.E. 1075




Supreme Judicial Court of Massachusetts, Barnstable.

March 3, 1899


Page 41

[52 N.E. 1075] H.H. Baker, for plaintiff.

H.P. Harriman, for defendant.



This is an action for personal injuries suffered by the plaintiff while a passenger upon a train of the defendant. The case, as stated by the plaintiff's witnesses, was as follows: A lamp opposite where the plaintiff was sitting blazed up. A bystander, and then the conductor, tried to fan out the flame with their hats, but did not succeed, and the plaintiff changed her seat to the other end of the car, next to the baggage car. Then a brakeman tried to smother the flame with oily waste, which caught fire, and blazed, part of it dropping on the floor. The flames came out underneath the lamp. The brakeman got down, and rushed for the rear end of the car, and it looked as if the car was on fire. Thereupon the plaintiff rose to go into the baggage car, presumably in some haste and fright, and struck her arm, hurting her ulnar nerve so badly that she fainted and fell.

An expert on lamps, who was a passenger, testified that the lamp needed more care than ordinary lamps; that the means used to put out the fire were dangerous; and that, with proper skill, the trouble could have been avoided. The judge refused to take the case from the jury, and the defendant excepted.

The judge who tried the case was right. We cannot say, as matter of law, how frightened the plaintiff was or ought to have been, or how great the peril of fire may have seemed. There is no question before us of the degree of firmness which the plaintiff was bound to exhibit, or, more accurately, of the defendant's immunity from consequences due to unstable nerves. Spade v. Railroad Co. (Suffolk, Jan. 16, 1899) 52 N.E. 747. If the peril seemed imminent, more hasty and violent action was to be expected than would be natural at quieter moments; and such conduct is to be judged with reference to the stress of appearances at the time, and not by the cool estimate of the actual danger formed by outsiders after the event. See Linnehan v. Sampson, 126 Mass. 506, 511, 512; Hawks v. Locke, 139 Mass. 205, 209, 1 N.E. 543; Pomeroy v. Inhabitants of Westfield, 154 Mass. 462, 465, 28 N.E. 899. We cannot say that an impulsive, and somewhat...

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