Bullard v. Boston Elevated Ry. Co.

• Decision Date: 05 March 1917
• Citation: 115 N.E. 294,226 Mass. 262
• Parties: BULLARD v. BOSTON ELEVATED RY. CO. (two cases). CURTIS v. SAME (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

226 Mass. 262

115 N.E. 294

BULLARD

v.BOSTON ELEVATED RY. CO. (two cases).

CURTIS

v.SAME (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

March 5, 1917.

Exceptions from Superior Court, Suffolk County; Charles U. Bell, Judge.

Four actions, one by Mary A. Bullard, one by Jane W. Bullard, one by Frances Curtis, and one by Nelson Curtis, administrator of Genevieve Curtis, deceased, all against the Boston Elevated Railway Company. Verdicts for plaintiffs, and defendant brings exceptions. Exceptions overruled in part, and in part sustained.

H. F. Hurlburt, D. E. Hall, and Stanley M. Bolster, all of Boston, for plaintiffs.

Fletcher Ranney and D. P. Ranney, both of Boston, for defendant.

RUGG, C. J.

These are actions of tort to recover damages for personal injuries resulting from a collision on Commonwealth avenue in Boston, between an automobile and a car of the defendant. The automobile was owned by Nelson Curtis. It was being driven by one Kaulback, a chauffeur in his employ. It was a limousine, and the glass partition separating the chauffeur from the people riding in the inside was up. The three first named plaintiffs and Mrs. Curtis, the wife of the owner of the car, were riding inside the automobile.

Negligence on the part of the chauffeur was not imputable to the first three plaintiffs. Two of them were guests of Mrs. Curtis. The third was her daughter, and there was not sufficient evidence to support a finding that in the presence of her mother the daughter undertook to exercise any authority over the chauffeur. There was no voluntary surrender on their part of all care for themselves and absolute reliance on the caution of the chauffeur in such sense as to charge them with responsibility for his conduct. There is little that a guest, riding on the inside of a limousine driven on a crowded city street by a chauffeur of presumed skill and experience, can do for his own safety even in the exercise of a high degree of care. The circumstances are quite different from those of a guest riding in a small horse drawn vehicle, where there is considerable range for the exercise of one's own faculties and where a complete abandonment of effort toward due care and blind dependence on the driver might be fraught with disastrous consequences. There is nothing in the cases at bar to show such conduct on their part as would impute to them responsibility for the negligence of Kaulback. Shultz v. Old Colony St. Ry., 193 Mass. 309, 79 N. E. 873,8 L. R. A. (N. S.) 597, 118 Am. St. Rep. 502,9 Ann. Cas. 402. This is a close approach to the illustration put in Ingalls v. Lexington & Boston St. Ry., 205 Mass. 73, 76, 90 N. E. 1154, where the guests are ‘so situated as to be obliged to trust everything to the driver of the vehicle in which they are riding.’ Where the facts show such compulsion there is in the absence of special contract no voluntary and unconstrained surrender of all care by the guest to the caution of the driver.

No negligence being imputable to them, the words of St. 1914, c. 553, became applicable. According to its terms each plaintiff was ‘presumed to have been in the exercise of due care,’ and contributory negligence became an affirmative defense, as to which the burden of proof rested on the defendant. There was no evidence sufficient to support a finding that either of these three plaintiffs was negligent in any respect conducing to the injury. There was no evidence tending to show that the presumption of due care was met and controlled by evidence to the contrary. There was nothing to indicate that they distrusted or ought to have doubted the skill or attention of the chauffeur, or that there was any duty resting on them to act. They were required to be in the exercise of due care. But they were also presumed by the statute to be thus careful. When the burden of proof rests upon a defendant, it becomes a matter of law whether there is sufficient evidence to warrant the submission of the question to the jury. The cases at bar do not raise any point as to the effect of the statute where there is conflicting evidence and the whole case is thrown open to be decided on all the evidence. See Turner v. Williams, 202 Mass. 500, 505, 89 N. E. 110,24 L. R. A. (N. S.) 1199, 132 Am. St. Rep. 511, and Chandler v. Prince, 217 Mass. 451, 455, 105 N. E. 1076. There simply was not enough evidence as matter of law to warrant consideration of the subject.

The presiding judge instructed the jury in substance that, if Mrs. Curtis exercised authority or control over the chauffeur then whatever negligence there was on his part was imputable to her, and that if he was negligent or if she was herself negligent, there could be no recovery by her administrator. The defendant has no ground for complaint in this respect. Miller v. Boston & Northern St. Ry., 197 Mass. 535, 538, 539, 83 N. E. 990. In conjunction with these unequivocal instructions, the further ruling that, as bearing upon the question whether Kaulback was in the charge or control of Mrs. Curtis in such sense as to warrant the imputation of his negligence to her, the jury might ‘consider the position she occupied in the car and whether she was in a situation to give orders to him at the time,’ was not erroneous. If in truth Mrs. Curtis had authority to exercise control over Kaulback, then her physical position in the automobile was of no consequence. If...