Bagnell v. Boston Elevated Ry. Co.

Decision Date08 January 1924
Citation142 N.E. 63,247 Mass. 235
PartiesBAGNELL v. BOSTON ELEVATED RY. CO.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Exceptions from Superior Court, Middlesex County; Jos. Walsh, Judge.

Action of tort by Elizabeth M. Bagnell against the Boston Elevated Railroad Company for personal injuries. Verdict for plaintiff, and defendant, being aggrieved by rulings, brings exceptions. Exceptions sustained.

F. J. Daggett and C. D. Driscoll, both of Boston, for plaintiff.

F. J. Carney, of Boston, and John A. Canavan, of East Boston, for defendant.

CARROLL, J.

The plaintiff was injured when alighting from one of the defendant's cars, by slipping on ice which had formed on the step. She testified that on the afternoon of January 28, 1920, she boarded the car at the car barn in Medford; that the lower step of the car was a folding step, the second was stationary, and the third ‘was onto the platform of the car’; that she noticed there was ice ‘frozen to the step, and irregular, lumpy’ on the stationary step; that during the day it had been snowing, sleeting and raining; that she remained in the car about 15 minutes; that on arriving at her destination she started to step down and slipped on the stationary step. There was additional evidence tending to show that there was ice on this step. It was described by one witness as ‘thin in some places and thicker in other places; it was frozen to the step’; and by another witness as ‘hardened ice, * * * about half an inch thick in some places, and not quite so thick in others.’

[1] The question of the defendant's negligence was properly submitted to the jury. There was evidence that the ice had formed on the step when the plaintiff became a passenger; that it was hard, and was in this condition when the car left the car barn. The jury were warranted in finding that the step was unsafe, and that the defendant could have known of its condition and remedied it. Gilman v. Boston & Maine R. R., 168 Mass. 454, 47 N. E. 193;Foster v. Old Colony St. Ry., 182 Mass. 378, 65 N. E. 795;Parker v. Middlesex & Boston St. Ry., 237 Mass. 291, 129 N. E. 353.

In Labrie v. Donham, 243 Mass. 584, 138 N. E. 3, there was nothing to show that, if any ice were on the step, how long it had been there. Goddard v. Boston & Maine Railroad, 179 Mass. 52, 60 N. E. 486,Lyons v. Boston Elevated Railway, 204 Mass. 227, 90 N. E. 419, and Hotenbrink v. Boston Elevated Railway, 211 Mass. 77, 97 N. E. 624,39 L. R. A. (N. S.) 419, relied on by the defendant, are not applicable. In the case at bar the ice was upon the step before the car started on its journey. The defendant in the exercise of reasonable care should have discovered it and taken proper precautions to make the car safe.

[2][3] The due care of the plaintiff was for the jury to decide. Parker v. Middlesex & Boston Street Railway, supra. The judge instructed the jury on this question that the burden of proof was upon the defendant on all the evidence to show that the plaintiff was not in the exercise of due care, and in speaking of St. 1914, c. 553, G. L. c. 231, § 85, he stated:

She starts with the presumption that she was in the exercise of due care. * * * The plaintiff comes into court before the jury with the presumption that she was in the exercise of due care at the time that the wrong or injury was received. But the burden being upon the defendant it is for you to say, when evidence appears upon that question, from all the evidence, whether the plaintiff was in the exercise of due care, and unless the defendant has satisfied you that she was not, then the presumption remains with her, and you are to presume that she was in the exercise of due care.’

At the close of the charge the defendant took an exception to this part of the charge, calling the judge's attention to the expression ‘then the presumption remains with her,’ and referring to this presumption said:

It ‘is only applicable when there is no evidence as to what the plaintiff was doing at the time; that once evidence appears...

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22 cases
  • Austin v. Eastern Massachusetts St. Ry. Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • December 31, 1929
    ...care disappeared (Duggan v. Bay State Street Railway, 230 Mass. 370, 378, 119 N. E. 757, L. R. A. 1918E, 680;Bagnell v. Boston Elevated Railway, 247 Mass. 235, 238, 142 N. E. 63), but it cannot be said as matter of law that the defendant has sustained the burden imposed on him by statute of......
  • Brown v. Henderson
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • February 15, 1934
    ...and are lacking in elements essential to the plaintiff's right of recovery, the presumption cannot be invoked. Bagnell v. Boston Elevated Railway, 247 Mass. 235, 238, 142 N. E. 63;Ferris v. Ray Taxi Service Co., 259 Mass. 401, 156 N. E. 538;Austin v. Eastern Massachusetts Street Railway, 26......
  • Hutchinson v. H.E. Shaw Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • October 3, 1930
    ...cases like Swetzoff v. O'Brien, 226 Mass. 438, 115 N. E. 748;Sullivan v. Chadwick, 236 Mass. 130, 127 N. E. 632;Bagnell v. Boston Elevated Railway, 247 Mass. 235, 142 N. E. 63;Will v. Boston Elevated Railway, 247 Mass. 250, 142 N. E. 44; and Murphy v. Boston Elevated Railway, 262 Mass. 485,......
  • Murphy v. Boston Elevated Ry.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • March 1, 1928
    ...Loyle v. Boston Elevated Railway (Mass.) 157 N. E. 356;Tobin v. Nahant & Lynn St. Ry. (Mass.) 157 N. E. 360;Bagnell v. Boston Elevated Railway, 247 Mass. 235, 142 N. E. 63;Doyle v. Boston Elevated Railway, 248 Mass. 89, 142 N. E. 693;Duggan v. Bay State Street Railway, 230 Mass. 370, 119 N.......
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