Bigwood v. Boston & N. St. Ry. Co.
| Decision Date | 21 June 1911 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | BIGWOOD v. BOSTON & N. ST. RY. CO. (three cases). BUTTERFIELD v. SAME. |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; John F. Brown, Judge.
Separate actions by Thomas C. Bigwood and others against the Boston & Northern Street Railway Company. Judgment for defendant, and plaintiffs except. Exceptions overruled.
C. W. Bartlett, J. W. Bartlett, F. E. Jennings, and A. T. Smith, for plaintiffs.
H. F. Hurlburt, D. E. Hall, and P. N. Jones, for defendant.
These are actions brought to recover damages for injuries received by passengers of the defendant. The car in which they were traveling came to a place on Main street in Melrose on a slightly descending grade at about 7 minutes before 8 o'clock on the evening of September 21, 1904, when an explosion of terrific violence occurred, which completely wrecked the forward part of the car, granulated the stone pavement of the street, blew away a portion of one rail of the defendant's track and killed and injured many people. The evidence as to the operation of the car immediately before was slightly conflicting. Several witnesses testified that it came to a stop, and then started forward slowly; others said it was coming to a stop; while one thought it was going six or eight miles an hour. If moving, its speed was such that it might have been stopped quickly and in a short distance. It appears to be conceded that dynamite was the cause of the catastrophe. The evidence as to dynamite was this in substance: The city of Melrose had ordered 200 pounds of dynamite to be delivered at its stone crusher, and on the afternoon of September 21st this had been brought from a hulk in the harbor where a quantity was stored. It was in four pine or spruce boxes, each about 17 1/2 inches long, 11 5/8 inches wide and 8 3/4 inches deep, and containing 100 cartridges. Each cartridge was cylindrical in form, 1 1/4 inches in diameter and 8 inches long, weighing one-half pound, and they were packed in tiers in sawdust. Each box weighed about 50 pounds. The evidence is not clear as to how securely the box covers were attached, but there was perhaps some to the effect that it was by four nails. These four boxes were delivered in Boston to the driver of an express team to be transported to Melrose, who put them on his load with other merchandise where they fitted best, one being on the top of a dry goods box. The load was not perfectly bound, and at some place between Charlestown and Everett another rope was used for binding, and nothing appears to have been missed from the load at this time. He then drove on the Melrose, and, at about the place where and a few minutes before the explosion occurred, crossed the tracks of the defendant and continued on to his stable not far away. Within half an hour after the explosion he discovered that the box which had been on the top of the dry goods box was gone, and only three boxes of dynamite could be found. There was no evidence aside from the explosion as to where this box was, or in what position or how the box or its contents was upon the street, or how or if at all the car came in contact with the dynamite. So far as disclosed on the record no one saw it after it was bound more securely upon the top of the dry goods box between Charlestown and Everett. There was evidence that empty boxes were kept on the hulk in the harbor ‘as oftentimes one gets broken; the men will drop a box 10 or 15 feet and smash it and the dynamite is repacked’; and that dynamite was more or less of ‘an erratic substance.’ The car was equipped with a fender, the exact height of which above the ground was not fixed, but there was some evidence that it was 6 inches.
[1] The plaintiffs claim upon this evidence that a jury would be justified in finding that the explosion was caused by the collision of the defendant's car with a box of dynamite on its track brought about by the negligence of the defendant or its motorman. The calamity which injured the plaintiffs was so extraordinary as to be wholly outside the pale of experience. It is not like derailment, a misplaced switch, sudden stopping or starting, a flash of electricity or any one of those not uncommon accidents, which might be taken to speak for itself of some lack of care or want of control of...
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