Carson v. Boston Elevated Ry.

• Decision Date: 22 April 1941
• Citation: 309 Mass. 32,33 N.E.2d 701
• Parties: NORA A. CARSON, administratrix, v. BOSTON ELEVATED RAILWAY COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

309 Mass. 32

33 N.E.2d 701

NORA A. CARSON, administratrix, v. BOSTON ELEVATED RAILWAY COMPANY.

Supreme Judicial Court of Massachusetts, Suffolk.

April 22, 1941

November 12, 1940.

Present: FIELD, C.

J., DONAHUE LUMMUS, QUA, & DOLAN, JJ.

Negligence, Street railway: sudden start. Evidence, Relevancy, Judicial notice. Practice, Civil, Requests, rulings and instructions Exceptions: whether error harmful. Error, Whether harmful.

At the trial of an action for personal injuries alleged to have been sustained by a passenger in a fall caused by a sudden or jerky starting of a street car as he was in the act of entering it, of which there was evidence, it was proper to admit in evidence a conversation by an employee of the defendant with the passenger at the time of the accident in which the passenger stated that he did not know what caused him to fall and did not in any form of words speak of a sudden or jerky start of the car.

Instructions to the jury at the trial of an action for personal injuries which removed from its consideration an element of physical injury of which there was evidence were not prejudicial to the plaintiff where it was not disputed that some physical injury had been sustained and the jury found for the defendant.

Notwithstanding expert testimony, at the trial of an action for personal injuries caused by sudden or jerky starting of an electric street car, to the effect that the starting mechanism of such cars had been so improved that, if in good condition and properly operated, starting and stopping would be without jerks, this court took judicial notice that perfect smoothness in the starting of such a street car is not yet attained in practice.

A jerk, jolt or lurch in the operation of a street car, to furnish evidence of negligence toward a passenger injured thereby, must be unusual and beyond common experience according to the standard of operation of the time in question.

TORT. Writ in the Superior Court dated October 19, 1934. The case was tried before Beaudreau, J.

E. B. Hanify, for the plaintiff. S. C. Rand, for the defendant.

LUMMUS, J. This action of tort for personal injuries was begun by Mary H Carson, but is prosecuted by her mother and administratrix. The plaintiff's intestate on October 13, 1934, at the Arlington Street station of the defendant, having paid her fare before entering the subway, suffered injury while boarding one of its street cars. Evidence for the plaintiff tended to show that the intestate, firmly holding the upright iron rod with her right hand, had her right foot on the car step and her left foot still higher on the vestibule floor when the car started with a lurch or jerk, and simultaneously the doors partly closed, and she was thrown down. Someone then cried out, the car stopped, and she was picked up. On the other hand, evidence for the defendant tended to show that she slipped and fell while entering a stationary car. There was a verdict for the defendant, and the case comes here on exceptions by the plaintiff.

The witness Cullen, a street car inspector of the defendant, testified to a talk with the intestate at the Park Street station, after she had been assisted from the car in which she had been hurt. In response to his question as to what had happened to her, she told him that she fell in getting on the car. Asked what caused her to fall, she told him that she did not know. He was properly allowed to testify that she did not in any form of words speak of a sudden or jerky start of the car. Langan v. Pianowski, 307 Mass. 149 , 151, 152.

There was expert evidence for the plaintiff that the intestate suffered after the injury from cancer at the site of her injury to her foot, that severe trauma is an adequate cause of cancer, and that the cancer in this case was caused by the injury. The judge in his charge excluded any direct connection between the trauma and the cancer, but submitted to the jury the question whether the trauma produced lowered capacity to resist the germ of cancer and in that way caused cancer. Wallace v. Ludwig, 292 Mass. 251 . But whether the judge was right or wrong in this instruction as to damages, is made immaterial by the verdict for the defendant. It cannot be said, as the plaintiff contends, that cancer was the only injury shown, and consequently was essential to the existence of her cause of action. It was not disputed that the plaintiff's intestate suffered a physical injury immediately upon her fall. Such injury appears upon the testimony of witnesses for the defendant as well as for the plaintiff.

The plaintiff excepted to the refusal to give her third requested instruction, as follows: "If the motorman prematurely caused the step from which the plaintiff [sic] was attempting to board the car to be lifted, and that lifting of the step caused the plaintiff [sic] to be thrown and injured, that would be negligence." See Fitzgerald v. Boston Elevated Railway, 274 Mass. 287 . Evidence for the plaintiff showed that "the steps of the car are folding steps and are connected through mechanical levers and rods to a door engine which operates one way to open the door and the other way to close the door and in doing so operates the steps," that "the doors cannot shut without pulling up the steps and the step cannot go up without the doors shutting; that the doors start to shut before the step starts to go up," that "thirty-five or forty pounds on the step will prevent the door from closing," and that the door engine is...