Boston Elevated Ry. Co. v. Smith

• Decision Date: 16 March 1909
• Docket Number: 807.
• Citation: 168 F. 628
• Parties: BOSTON ELEVATED RY. CO. v. SMITH.
• Court: U.S. Court of Appeals — First Circuit

168 F. 628

BOSTON ELEVATED RY. CO. v. SMITH.

No. 807.

United States Court of Appeals, First Circuit.

March 16, 1909

M. F Dickinson and Walter Bates Farr, for plaintiff in error.

Julian C. Woodman, for defendant in error.

Before COLT, PUTNAM, and LOWELL, Circuit Judges.

COLT Circuit Judge.

This is an action of tort to recover damages for personal injuries. The plaintiff was a passenger on an electric street car operated by the defendant. She had just boarded the car when, upon the sudden movement of the car in starting, she fell upon the floor, inflicting the injuries complained of. The jury returned a verdict for the plaintiff.

At the close of the evidence the defendant requested the court to rule as follows:

'(1) Upon all the evidence in the case the plaintiff is not entitled to recover.

'(2) There is no evidence in this case sufficient to warrant the jury in finding that the plaintiff's injuries were due to the negligence or carelessness of the motorman in the way and manner in which he started the car.

'(3) Nor is there sufficient evidence to warrant the jury in finding that the conductor was negligent or careless in giving the signal to start the car when he did, under all the circumstances in this case.'

These rulings the court declined to make, and the defendant duly excepted. There were also other requests for rulings which we find it unnecessary to consider.

The material facts are as follows:

On November 15, 1906, about 8 o'clock in the evening, when returning home from her work, the plaintiff boarded one of the defendant's inward-bound cars at the corner of P and third streets, South Boston. She was carrying in her hand at the time an umbrella and a small hand bag. The night was stormy. The car had just left the carhouse, and the only other persons on the car except the motorman and conductor of the car were three conductors employed by the defendant, who were returning home after their day's work. The car was a vestibuled closed car, and the threshold of the door leading into the car was 6 1/2 inches above the floor of the platform, and on this threshold were two small projections on which the door runs.

The plaintiff was a German woman, 52 years of age, 5 feet 5 inches in height, and weighed about 198 pounds. She was a stout woman in appearance, and she was slow in her movements. She was accustomed to riding on electric cars. According to her story, she had mounted the platform, and was about to enter the car door, with her umbrella and bag in one hand, and holding her dress in the other, when the car was started with a sudden jerk, which threw her to the floor, injuring her leg, abdomen, and arm.

In her testimony the plaintiff says:

'I got onto the platform, and as I was trying to get inside the car, holding up my dress, the car started with a sudden jerk, unusually quick. I was slightly thrown back and forward before I had a chance to put my foot on the threshold of the door. I came down on my shin on the threshold with my knee. I fell on my shin, and with my left leg I went down on my knee, and I tried to reach forward to catch the door or something to hold myself, but I couldn't. I was thrown forward, and my arm came under me. One of the employes assisted me up. I had my bag and umbrella, which flew halfway in the car.

'I was seated on the corner seat on the right-hand side after the accident. One of the carmen came and asked my name and asked me if I was badly hurt and I said, 'Yes.' I could scarcely speak, but I managed to get home, but it was very hard, and I tried to go to work the next morning, but I was unable to work. I went home and sent for the doctor. I stayed home between five and six weeks, and I have not fully recovered to-day. I was out of work between five and six weeks. I was obliged to go to work in order to support myself and my aged sister. There was no trouble about finding a seat in the car. There were five carmen inside the car. They sat one near each door and two on each side up above. I had an umbrella and bag in one hand, and lifted up my skirt in order to avoid stepping on it. It was raining; it was snowing; it was a very stormy night. The car windows were covered with snow. I was thrown back a little first and then forward. When I fell I hit both my shins, both my knees, and landed very heavily on the lower part of my stomach and my arm. The car was on a straight track. My experience is that if a car is on a straight track and starts with a sudden jerk it will throw a person backward.

'Q. You did step on your skirt when you were entering? A. I did not step on it.

'Q. You say that you had got on the platform of the car and were going inside and putting your foot on the step of the floor of the car, and that is the time the car started? A. Yes.

'Q. Which foot did you put upon the floor? A. Right foot.

'Q. You say that you were thrown back a little? A. Thrown back a little, and then forward.

'Q. How was it you were thrown forward if you didn't step on your dress?

A. The sudden jerk of the car.

'Q. Sudden jerk of the car forward you mean? A. The car started suddenly.

'Q. With a jerk. A. With a jerk, before I had a chance to get inside.'

In addition to her own evidence, the plaintiff called as witnesses two physicians who testified as to her injuries. Dr. Hayes, her attending physician, said that he called on the plaintiff on November 15, 1906; that he found, among other injuries, transverse abrasions of the right shin, about junction of the middle and lower third, with indentation of bone at that site; just above these were two smaller abrasions, similar, but not so pronounced; that the indentation was still to be found at the time of the trial. The plaintiff also called, as a witness, John W. Sullivan, an expert in the operation of electric cars, who testified as to the manner of starting cars gradually and slowly, or with a jerk. This comprises the entire evidence of the plaintiff.

The defendant called as witnesses the conductor and motorman of the car, and the three other conductors who were aboard at the time. All these witnesses testified that the car started in the ordinary way, or with no unusual jerk; and they all, except the motorman, further testified that the plaintiff was inside the car door about two feet, when the car started, and she fell upon the floor, and that she seemed to fall by reason of tripping on her skirt.

Upon the foregoing facts the question of the defendant's negligence involves two inquiries:

(1) Was there any evidence sufficient to warrant the jury in finding that the motorman started the car with an unusually sudden jerk?

(2) Was there any evidence sufficient to warrant the jury in finding that the conductor was guilty of negligence in giving the starting signal too soon?

1. While the evidence shows that the plaintiff's fall and consequent injuries were caused by the movement of the car in starting, there is no substantial evidence that the car was started with any unusual jerk. The statement of the plaintiff in her declaration that she 'was violently thrown down * * * in starting the car' is not supported by the proofs. While she testifies that the car was 'started with a sudden jerk, unusually quick,' this is immediately qualified by the statement that she 'was slightly thrown back and forward'; and this statement is repeated with a slight change in form: 'I was thrown back a little first and then forward'; and in her cross-examination, although she says 'the car started suddenly,' this is again qualified by the statement that she 'was thrown back a little and then forward.' This evidence is consistent with the ordinary jerk of the car in starting, and is inconsistent with any sudden or violent jerk. Again, according to her own story, her position was such, as she was about stepping from the platform upon the threshold of the car, with her umbrella and bag in one hand and holding her dress in the other, that any ordinary jerk of the car in starting would be likely to throw her down, unless she braced herself in some way against the side of the door.

There is also the evidence that her 'bag and umbrella flew halfway in the car,' and that there was an indentation in the shin bone caused by her fall. While this evidence has a bearing on the degree of suddenness with which the car started, we do not think it is sufficient to make out a case of negligence, in the absence of other clear evidence that the start was unusually sudden or violent. The bag and umbrella would naturally be thrown from her hand in trying to save herself from falling, while the indentation might be caused by the simple fall of a heavy woman in striking her shin against the projections on the threshold of the car door.

It is well understood by persons accustomed to ride on electric cars that the cars are liable to start with more...