Byron v. Lynn & B.R. Co.
| Decision Date | 02 January 1901 |
| Citation | 177 Mass. 303,58 N.E. 1015 |
| Parties | BYRON v. LYNN & B. R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
R. W. Nason and T. W. Proctor, for plaintiff.
H. F. Hurlburt and D. E. Hall, for defendant.
Upon full consideration of the evidence, we are of opinion that it would not justify a finding that the defendant was negligent. The car was a short one, running upon a single track, and had no gates upon the platforms. But such cars are common. There is no statute which forbids their use, or requires them to be equipped with gates. The use of such a car was not negligence. The deceased was thrown to the ground by a swaying or jolt or lurch of the car as it returned to the main track from a siding. Such motions of street cars are of common and frequent occurrence, and are to be expected, to a greater or lesser degree, whenever the car passes from one track to another, and so are of the class of usual and unavoidable incidents in the use of cars upon the street. McCauley v. Railway Co., 169 Mass. 301, 47 N.E. 1006; Holland v. Railway Co., 155 Mass. 387, 29 N.E. 622. Unless they are unusual in degree, and caused by some defect in the car or the track, or by some unusual or dangerous rate of speed, they furnish no evidence of negligence on the part of the carrier or of its servants. See Turnpike Road v. Cason, 72 Md. 377, 20 A. 113; Francisco v. Roilroad Co., 78 Hun, 13, 29 N.Y.S. 247. There was no evidence that the jolt was due to any defect in the car or in the track, or that the car was proceeding at an extraordinary speed. The witnesses who gave an estimate of the speed placed it at from 3 1/2 to 4 miles an hour, and there was no one who testified that the rate was either unusual or dangerous. The jar felt by the different witnesses was not so great as to be unusual, or as to justify a finding that it was due to negligence. Exceptions overruled.
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