Carroll v. Boston Elevated Ry. Co.

• Decision Date: 06 January 1909
• Citation: 200 Mass. 527,86 N.E. 793
• Parties: CARROLL v. BOSTON ELEVATED RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

200 Mass. 527

86 N.E. 793

CARROLL v. BOSTON ELEVATED RY. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

January 6, 1909

Jan. 6 1909.

The following were the instructions requested by plaintiff:

'(1) Upon all the evidence the jury should find for the plaintiff.

'(2) Upon all the evidence the jury should find that the plaintiff was a passenger upon the defendant's railway at the time of the accident.

'(3) Upon all the evidence the jury should find that the plaintiff was in the exercise of due care at the time of the accident.

'(4) Upon all the evidence the jury should find the defendant's negligence was the cause of the accident.

'(5) The undertaking of the defendant as a carrier of passengers is that it will use reasonable care according to the nature of its contract; and, as that involves the safety of the lives and limbs of passengers, the law requires the highest degree of care which is consistent with the nature of the undertaking.

'(6) While the burden of proof of the defendant's negligence is upon the plaintiff in this case, the proof of the occurrence of the accident in this case and of the exercise of due care on the part of the plaintiff is prima facie proof of the defendant's negligence.

'(7) A railway and its cars are so constructed and adjusted to each other with the purpose that, when there is no defect in either, the cars shall remain on the track. The fact that a car runs off the track or jumps a switch is evidence of defect or negligence somewhere; and, when the track and cars are under the exclusive control of the defendant, it is evidence sufficient to charge it, in the absence of an explanation which satisfies the jury, that the accident was not due to negligence in some respect on the part of the defendant.

'(8) The plaintiff is not bound to show the particulars of the defendant's negligence, or to point out the particular act or omission which caused the accident. It is enough if she shows facts from which negligence may be inferred.

'(9) No one but the defendant was in control of the car or switch and from the circumstances of the accident it would not be reasonable to infer that it was due to the careless or willful act of any third person, or to any cause except the failure of the switch to perform the function for which it was designed and which was made of it by the defendant.

'(10) The jury are not bound to believe the evidence of the defense or to accept the explanation of the accident offered by it, unless they are satisfied that it is true and that the accident was not in fact due to the negligence of the defendant in any particular.

'(11) The defendant was bound to use the highest degree of care for the safety of its passengers consistent with the practical operation of the railway; and if the jury find that the accident would not have resulted, had greater care been taken to examine the condition of the switch and the position of the tongue and key of the same, the plaintiff is entitled to recover.

'(12) The fact that the car again jumped the switch upon being replaced after the accident is evidence of a defect in the car or switch.'

The judge gave the instructions prayed for in the second, third, fifth, eighth, and ninth prayers as requested, or in substance, and refused to give the instructions contained in the first, fourth, sixth, tenth, eleventh, and twelfth prayers, and gave the instructions contained in the seventh prayer, but modified.

The following is the letter referred to in the opinion:

'So. Boston, July 26, 1900.

'Dear Jim: Well I thought I would write you a few lines and let you know what is going on in this part of the town. Well the first go off Mr. J. Carroll was arrested & his Mother had to pay a fine of $3.00 & $2.00 to bail him out & may be there isn't war over that much money. They are all going it blind to have him put away but the old Lady sides in with him. Everett is after giving him another wheel, but she does not let him work any more & Mrs. McDermott is ripping it into her for fair, and also old lady Drake, so yesterday she was out Grove Hall way looking for rooms but didn't get any as yet, but is going again today. The girls came back from Portland with swelled heads. They were made acquainted with 35 fellows & they didn't know which they would take. There are two of them calling here now but they are both ashamed of the Street so Ma must move right away as the Street is not fit for some Dr. & Dentist that they would like to ask & laying all jokes aside I wonder how their front room will suit their swelled friends. The other night Bill sat on the steps & Katie & Joe did so much blowing that Bill couldn't stand it so he went across to Johnie Kramer. They were saying that they never went to bed till two & three oc'l in the morning that they stayed out on the yacht till that time, so Bill sayes he doesn't think much of either of them but this Street has two much noise for them they want to go where it is quiet. Don't say a word Jim Mahan calls here again to see Katie, & last night she had a date with Keenan & expected Willie at the same time. Joe is going with a fellow named Patterson, but he looks like a good hot sport. But they both want to catch the Dentist as they said on the steps the other night they wanted to pull his leg, they are both making up their minds to go to Portland for Labor Day, & I guess that is all eight of them intend to do with any fellow but some day they will both get taking in the same as their Mother did. Well the Kramers go away Monday to be gone for a month & Bill Eddie & I are going out to Roslindale for a week in Aug. Bill is still working. Sat. night he was with Bachelder down to his house drinking Italian wine & may be he wasn't sick, Sunday, and I more than give him the laugh. Well I guess I will close hoping you are taking good care of yourself, & are well as this letter leaves us all at the present time. Mrs. O' B.

'Jim be sure & burn this letter after you read it as I wouldn't want Flossie or Nillie to read it after you came home & you needn't mind answering it as I only thought I would let you know what was going on unless you want to. Nell.'

COUNSEL

Wendell P. Murray, for plaintiff.

Ralph A. Stewart and Henry J. Hart, for defendant.

OPINION

BRALEY, J.

If the record is supplemented by the admissions found in the brief of defendant's counsel, the refusal of the president to answer the eleventh interrogatory affords no ground of appeal. The defendant was not compelled under Rev. Laws, c 173, § 63, to disclose in advance its theory of the accident, or to state the facts derived from investigation, upon which it relied to establish its defense. Gunn v. New York, New Haven & Hartford Railroad Co., 171 Mass. 417, 50 N.E. 1031; Robbins v. Brockton Street Railway Co., 180 Mass. 51, 61 N.E. 265; Spinney v. Boston Elevated Railway Co., 188 Mass. 30, 73 N.E. 1021. Nor was there any error at the trial in the rulings upon the admission and exclusion of evidence.

It was within the discretion of the presiding judge, which does not appear to have been wrongly exercised, to exclude the testimony of the plaintiff's medical expert, upon the ground that in his opinion the witness lacked sufficient medical experience. Muskeget Island Club v Nantucket, 185 Mass. 303, 70 N.E. 61; Lakeside Mfg. Co. v. Worcester, 186 Mass. 552, 72 N.E. 81. Moreover as his evidence, if admitted, bore only on the measure of damages, the jury having found there was no liability, the plaintiff was not prejudiced. The exclusion of the letter also was discretionary, as it contained only by remote inference, if at all, any possible allusion to the plaintiff. Jennings v. Rooney, 183 Mass. 577, 67 N.E. 665; Robinson v. Old Colony Street Railway Co., 189 Mass. 594, 76 N.E. 190. The defendant, without objection or exception, having put a hypothetical question to an expert called by it to give his opinion as to the causes by which the car might have been derailed, the plaintiff asked that his answer be excluded, because it assumed the existence of facts not in evidence, and which the jury could not fairly find to have been true. To a refusal to exclude this answer the plaintiff excepted. Williams v. Clarke, 182 Mass. 316, 65 N.E. 419. A hypothetical question rests upon either assumed facts already in evidence, or assumed facts which may be put in evidence. In determining the scope, fullness and distinctness of the questions, much must be left to the discretion of the presiding judge, which ought not to be overridden, unless it very clearly appears to have been wrongly exercised. Chalmers v. Whitemore Mfg. Co., 164 Mass. 532, 533, 42 N.E. 98; Anderson v. Albertstamm, 176 Mass. 87, 57 N.E. 215; Com. v. Johnson, 188 Mass. 382, 384, 385, 386, 74 N.E. 939. By the testimony of other witnesses the defendant had laid a proper foundation upon which to rest the assumption of facts in the question asked. The witness assumed in his answer, as the question itself was predicated upon such assumption, that the car track, and the switch, were apparently in good condition as well after as before the accident, and then proceeded to give his opinion that, if these conditions were found to have existed at the time, the tongue of the switch might have been moved a little when the forward trucks passed over, and, if this occurred, the rear trucks as they followed might be caught causing the car partially to leave the track. In further demonstrating how this might happen, his statements that, if dirt had worked into the switch, the tongue might have been pushed out from the rail on which the car was traveling, causing it to run off the track or if the switch tongue had become slightly worn, it would be a little low, causing the tread of the wheel...