Bilodeau v. Fitchburg & L. St. Ry. Co.

• Decision Date: 06 December 1920
• Citation: 128 N.E. 872,236 Mass. 526
• Parties: BILODEAU v. FITCHBURG & L. ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

236 Mass. 526

128 N.E. 872

BILODEAU

v.FITCHBURG & L. ST. RY. CO.

Supreme Judicial Court of Massachusetts, Worcester.

Dec. 6, 1920.

Exceptions from Superior Court, Worcester County; Nelson P. Brown, Judge.

Action by Joseph Bilodeau against the Fitchburg & Leominster Street Railway Company. Verdict for plaintiff and defendant excepts. Exceptions sustained.Hoy & O'Connell, of Fitchburg (David B. Hoar, of Springfield, George E. Morris, of Boston, and John M. Russell, of Cambridge, of counsel), for plaintiff.

Baker & Baker, of Fitchburg, and Charles C. Milton and Frank L. Riley, both of Worcester, for defendant.

BRALEY, J.

The plaintiff boarded the defendant's car, and, the conductor having received his fare, he became a passenger even if because of its crowded condition, as the jury could find, he stood inside of the rear vestibule with one hand on the controller. Lockwood v. Boston Elevated Railway, 200 Mass. 537, 542, 86 N. E. 934,22 L. R. A. (N. S.) 488;Pomeroy v. Boston & Northern Street Railway, 193 Mass. 507, 511, 79 N. E. 764. The defendant accordingly was bound ‘to use the highest degree of active diligence commensurate with the mode of transportation employed and the practical operation of its railway.’ Marshall v. Boston & Worcester Street Railway, 195 Mass. 284, 287, 81 N. E. 195, 196, and cases cited; Millmore v. Boston Elevated Railway, 194 Mass. 323, 80 N. E. 445,11 L. R. A. (N. S.) 140, 120 Am. St. Rep. 558;Thayer v. Old Colony Street Railway, 214 Mass. 234, 101 N. E. 368, 44 L. R. A. (N. S.) 1125, Ann. Cas. 1914B, 865; Perkins v. Bay State Street Ry. Co., 223 Mass. 235, 111 N. E. 717. The plaintiff testified that--

While passing over a curve ‘all at once the car made an awful sway and I lost my hold. I was hanging onto the controller, and it threw me; when I saw myself go I dropped everything, * * * and made a grab for the center piece, the pole, my elbow touched the man standing next to the rod. I lost it and was thrown out headfirst. My head struck something, and that is all I remember.’

Nor is there any dispute that as the plaintiff lay unconscious in the street with his body partially on one of the outer rails, a car of the defendant immediately following came up and passing over him inflicted severe personal injuries resulting in the amputation of both legs just below the knee. The jury upon evidence which was properly admitted could find that the car as it entered the curve was ‘behind time,’ and moving on a down grade from 20 to 25 or 30 miles an hour over a track which on the evidence of the plaintiff's experts was not at this point thoroughly constructed, and had become to some extent in disrepair, and the rate of speed was in excess of the company's rules. The defendant, however, contends that the swaying of the car was not unusual, and the descriptive adjectives of the various witnesses as to speed and lateral motion can add nothing to the probative force of their evidence. Byron v. Lynn & Boston Railroad, 177 Mass. 303, 58 N. E. 1015;Sanderson v. Boston Elevated Railway, 194 Mass. 337, 80 N. E. 515.

But on the record a finding would have been warranted, that the car was ‘swaying-a sharp swing sidewise,’ ‘going from one side to the other, shaking back and forth,’ ‘waving back and forth,’ and that these movements were excessive, violent and irregular, and that the plaintiff would not have been thrown off, nor would the accident have happened if there had not been negligence in the operation of the car. Carroll v. Boston Elevated Railway, 200 Mass. 527, 86 N. E. 793;Marshall v. Boston & Worcester Street Railway, 195 Mass. 284, 81 N. E. 195;Spooner v. Old Colony Street Railway Co., 190 Mass. 132, 134, 135, 136, 76 N. E. 660;Nolan v. Newton Street Railway, 206 Mass. 389, 92 N. E. 505;Bell v. New York, New Haven & Hartford Railroad, 217 Mass. 408, 410, 104 N. E. 963;Griffin v. Springfield Street Railway, 219 Mass. 55, 106 N. E. 551;Johnston v. Bay State Street Railway, 222 Mass. 583, 111 N. E. 391, L. R. A. 1918A, 650;Creedon v. Galvin, 226 Mass. 140, 115 N. E. 307.

While it could have been found that shortly before taking passage the plaintiff to some extent at least had drank intoxicating liquor, how far, if in any degree, its use caused his fall, or contributed to his injury was a question of fact. The jury might have been convinced on the evidence of the plaintiff and his witnesses that the amount of beer which he admitted to have taken was the only intoxicant used, and that it in no way affected his conduct. The defendant's motion for a directed verdict could not have been granted, and its requests that on the evidence the plaintiff could not recover, and that there was no evidence of the defendant's negligence, or the negligence of its employees, and that the plaintiff was guilty of contributory negligence, and there was no evidence which would warrant the jury in finding that the car was being operated at an excessive rate of speed, could not have been given. Work v. Boston Elevated Railway, 207 Mass. 447, 93 N. E. 693;Heshion v. Boston Elevated Railway, 208 Mass. 117, 118, 94 N. E. 390;Griffin v. Springfield Street Railway, 219 Mass. 55, 106 N. E. 551;Vahey v. Boston Elevated Railway, 222 Mass. 374, 111 N. E. 40.

Its remaining exceptions, substantially 137 in number, are to the failure to give other requests, and to certain portions of the instructions, and to rulings on the admission and exclusion of evidence. It was as we have said for the jury to determine whether the plaintiff used intoxicating liquor, and if so, whether its use contributed in any degree to his injuries, and the defendant's twenty-fifth and twenty-sixth requests that if it did he could not recover accurately stated the law. Labrecque v. Donham, 236 Mass. 10, 127 N. E. 537. The requests were not unequivocally and positively given. The jury on this question and other material issues were instructed that--

‘The mere fact that a passenger who is injured on a common carrier is under the influence of intoxicating liquor or even so far under the influence as to be called drunk, does not deprive him of the right of recovery. It is important not in determining the extent to which his condition of possible intoxication went but in view of what may have been its extent, what effect it may have had upon his doing those things or his failing to do those things which he should have done or should not have done to measure up to the standard of the reasonable, prudent and careful passenger on that car that evening. For illustration, a man may be what is commonly known as paralyzed drunk and a passenger upon a common carrier and by reason of an act of negligence on the part of the carrier's servant, the car becomes derailed and he with other passengers is injured, he may recover under those assumed facts no less than the perfectly sober person who was sitting beside him, for the reason that neither one of them have done anything or omitted to do anything which they should have done or should not have done under the circumstances to care for their own safety. Now, what was Joe Bilodeau doing, what did he do if anything on the back platform that could be termed an act of negligence which contributed to his injury? And there is where we reach the first difficulty in the case. The injuries of which he complains were not received as an immediate result of the fall. In other words, it was not the fall which caused them. He was not thrown immediately in front of a passing car. He was not thrown onto a buzz saw. He was thrown and remained upon the ground for some period of time, greater or less, before finally injured by another car. * * *

‘Now that car was crowded and in taking a position on the rear platform, he was obliged to use such care as he was able to use-I don't mean with reference to his sobriety, but such care as the reasonable, prudent and careful man would have exercised under the circumstances to provide for his own safety upon that rear platform. * * *

‘Then you have the second possible explanation of the facts in the case, and that is where you might possibly determine that both the company and Bilodeau's negligence contributed to his being thrown out of the first car. In that event Bilodeau would still possess the status of a passenger if he lay stunned on the ground while the second car was approaching and was entitled to have the servants of the company use toward him the utmost care with regard to his safety consistent with the operation, the practical operation, of the road, including the operation of the car which injured him. The company would be liable, in spite of Bilodeau's negligence, in spite of his intoxicated condition, if you should find that he was in an intoxicated condition, if that condition and that negligence did not contribute to the running over of his legs but if it rather was a condition.

‘Now suppose still a further possible situation here; and that is that no act of negligence on the part of the company was responsible for Joe's leaving the car, but it was entirely his fault that he got out of the car in the first place. In that event, I instruct you that he would nevertheless be a passenger until such time as he had had an opportunity, if such an opportunity existed, to re-establish another status. And the same rule of law would apply. What responsibility could be attached to the driver of the second car, there being no act of negligence on the part of the company by reason of the operation of the first, and he having gotten out of the first car by reason of his own negligence? Then you would have to determine whether or not at the moment he was run over by the second car, he was guilty of an act of negligence which contributed to that injury, or whether he had been there long enough in your opinion to make it merely a condition with which the second motorman had to deal. If it was not a condition under those circumstances and you should say that his negligent act came...