Charles v. Boston Elevated Railway Co.

• Decision Date: 25 June 1918
• Citation: 230 Mass. 536
• Parties: OWEN C. CHARLES, administrator, v. BOSTON ELEVATED RAILWAY COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

230 Mass. 536

OWEN C. CHARLES, administrator, v. BOSTON ELEVATED RAILWAY COMPANY.

Supreme Judicial Court of Massachusetts, Suffolk.

June 25, 1918

March 25 1918.

Present: RUGG, C J., BRALEY, DE COURCY, CROSBY, & CARROLL, JJ.

Negligence, In use of highway, Imputed, Causing death, Street railway. Corporation, Ultra vires. Street Railway. Proximate Cause. Practice, Civil, Charge to jury, Special questions to jury Deliberation of jury after separation upon unanswered question. Jury and Jurors.

Where, at the trial of an action against a street railway company for causing the death (before the enactment of St. 1914, c. 553) of a woman who was thrown from a carriage upon a public street in a city because the horse drawing the carriage fell into a hole in the street between street car rails which the defendant had undertaken to guard, there was no direct evidence as to the woman's conduct before the accident other than that she was sitting at the left hand side of the carriage beside her husband, who was driving, and there was evidence tending to show that both she and her husband were experienced drivers of horses, that there had been digging in various parts of the street and piles of dirt were about, that there were two watchmen and some lights in the neighborhood of the hole which caused the accident, that the husband was driving in the street car track, the horse trotting at a speed of about five or six miles an hour and that there was no easily visible indication of the excavation between the rails findings are warranted that both the husband and the wife were in the exercise of due care.

If a city makes an excavation between the rails of a street car track and the street railway corporation undertakes to guard the hole and to prevent travellers from failing into it, the assumption of that duty is not an act by the corporation ultra vires.

If, owing to negligence of the street railway company in performing the duty thus assumed by it, the death of a person is caused, recovery for such causing of death is not limited to the $1,000 allowed by R.L.c. 51,

Section 17, in an action against a municipality for loss of life caused by a defect in a highway.

At the trial of an action for causing death, the judge in his charge to the jury stated, "if you find upon all the evidence that the intestate's death was hastened by this accident, then the plaintiff has sustained the burden of proving that her death was caused by the accident within the meaning of this statute. If you find that she was confined to her bed and had become weak and enfeebled, and if owing to that weakness and confinement hyperstatic pneumonia developed which caused her death, then you would also be warranted in finding that her death was due to the accident. If you should further find that she had some kidney trouble prior to the accident and that owing to the accident it was aggravated and made acute and that her death was materially hastened by the accident, then you would properly be warranted in finding that her death was caused by the accident." Held, that such instructions were not fairly susceptible of the construction that there could be recovery even though the confinement to the bed and consequent weakness were not the result of the accident or their proximate cause, but that the instructions meant that there could be no recovery except for consequences flowing from the fall as their operative cause, which was a correct statement of the law.

The declaration in an action of tort by an administrator contained three counts, one for conscious suffering of the intestate, one for damage to his property and one for causing his death. Special questions were submitted to the jury on a Thursday relating to due care of the plaintiff, negligence of the defendant and damages, it being agreed by counsel that the answers to the questions should be regarded as a sealed verdict in that the formal opening of the verdicts one way or the other might be done when the jury reconvened on the next court day, which was

Monday. The jury separated at eleven o'clock at night on Thursday.

When court reconvened on Monday, the foreman of the jury announced agreements on the answers to all the questions except one, which related to the damages to be assessed under the count for causing death. From the other answers it appeared that the jury had found that the intestate was in the exercise of due care and that the defendant was negligent. The foreman, in answer to an inquiry by the judge, stated that he thought that an agreement might be reached as to the unanswered question. Upon inquiry, the judge was informed that no member of the panel had talked with anybody in any manner about the case. The judge thereupon ordered the jury to return to their room and consider the unanswered question further. They did so and agreed upon an answer upon which as a basis the judge ordered a finding for the plaintiff upon the appropriate count of the declaration. Held, that the action of the judge was not an improper exercise of his discretion.

TORT by the administrator of the estate of Emma M. Charles, with a declaration, as amended, in five counts, only the third, fourth and fifth of which are material. In these counts it was alleged that the defendant undertook for its own purposes and in its own interest to guard properly a hole or trench in Washington

Street in that part of Boston called Dorchester between its outward bound tracks, and to give proper and sufficient warning and notice of the existence of the hole so that the highway at that place might be reasonably safe for travellers, and that it had failed properly to perform the duty thus assumed, so that the plaintiff's intestate on July 8, 1912, when riding on the highway, in a carriage, was thrown to the ground and received injuries which resulted in her death. In the third count the plaintiff claimed damages for conscious suffering, in the fourth damage to the horse and carriage, and in the fifth the statutory penalty for causing the death of the plaintiff's intestate. Writ dated April 9, 1913.

In the Superior Court the case was tried before Sisk, J. The material evidence is described in the opinion. At the close of the evidence, the defendant asked for and the judge refused to make rulings, which, so far as material to this action, were as follows:

"6. There is no evidence that Emma M. Charles at the time of this accident was in the exercise of due care, and therefore the verdict of the jury must be for the defendant . . ."

"7. The mere fact that the late Emma M. Charles was sitting in the wagon beside her husband is not evidence of due care on her part."

"9. Under no circumstances can the jury find a verdict against the defendant company for the death of Emma M. Charles in excess of $1,000.

"10. If the jury shall find that the defendant company voluntarily assumed the work of watching the hole in question, which duty primarily rested upon the city, and if the jury shall also find that the defendant company was negligent in the manner in which they attempted to perform this work, the defendant company cannot be held responsible to any greater extent than could the city, had the city been performing the work and been found negligent in the same way."

The judge thereupon submitted to the jury special questions, which, together with the action of the jury thereon and the course of the trial relating thereto, are described in the opinion. Upon the return of the answers to the questions, the judge ordered a verdict for the plaintiff on the third count in the sum of $2,250, on the fourth count in the sum of $150 and on the fifth count in the sum of $3,750. The defendant alleged exceptions.

E. P. Saltonstall, (C.

W. Blood with him,) for the defendant.

D. E. Hall, for the plaintiff.

RUGG, C. J. This is an action of tort. The declaration was in five counts, three of which are material, one to recover for the personal injuries, one for the property damage, and one for the penalty for causing the death of the plaintiff's intestate, who was his wife. The plaintiff and his wife were travelling together with their daughter, then about ten years old, on Washington Street in Dorchester, in an open runabout driven by the plaintiff, who was a livery stable keeper, when the horse went into an excavation in the street and the intestate was thrown upon the pavement, receiving injuries as a result of which it might have been found that she died several months later.

There was evidence sufficient to support a finding of due care on the part of the intestate. She was travelling with an experienced horseman in the evening on a city street. Confessedly there had been considerable digging in different parts of the street and there were several piles of dirt. Two watchmen at least were in the neighborhood, whose duty it was to guard the places of danger and to give warning to travellers. There was conflicting testimony as to the number and position of lights in the street. The plaintiff was driving the horse in a street railway track, trotting at an estimated speed of from five to six miles an hour, and there was some evidence tending to show that there was no easily visible indication of the excavation between the rails of the track into which the horse fell. There was no direct testimony as to the conduct of the wife immediately before the accident other than that she was sitting on the left side of the vehicle. That was where she ought to have been sitting. She was herself an experienced driver of horses, she was with her small daughter in a vehicle driven by her husband amid a more or less distracting series of obstructions on a city street at night. The judge instructed the jury that want of due care on the part of the...