Corsick v. Boston Elevated Ry.

• Decision Date: 23 May 1914
• Citation: 105 N.E. 600,218 Mass. 144
• Parties: CORSICK v. BOSTON ELEVATED RY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

218 Mass. 144

105 N.E. 600

CORSICK

v.BOSTON ELEVATED RY.

Supreme Judicial Court of Massachusetts, Suffolk.

May 23, 1914.

Exceptions from Superior Court, Suffolk County; Wm. F. Dana, Judge.

Action by Mathew C. Corsick against the Boston Elevated Railway. Verdict for plaintiff, and defendant brings exceptions. Sustained.

Plaintiff sued in four counts for injuries alleged to have been sustained by him while in defendant's employ. Plaintiff alleged that on March 5, 1907, he was employed by defendant as a motorman, and that while in the exercise of due care he was seriously injured in the East Boston tunnel by collision with a preceding car. It was undisputed that the accident happened on March 5th at about 6 p. m. at the Atlantic Avenue station of the East Boston tunnel; that plaintiff's injuries were caused by a collision between one of defendant's vestibule cars numbered 447, which was then being operated by plaintiff as motorman, and another of such cars, numbered 5401, which at the moment of the collision was standing in berth numbered 1 at the station. Both cars were outward bound from Boston; plaintiff claiming that the accident occurred because of the failure of the brakes on his car to work.

Walter I. Badger and Wm. Harold Hitchcock, both of Boston, for plaintiff.

W. G. Thompson, F. Delano Putnam, and Geo. E. Mears, all of Boston, for defendant.

SHELDON, J.

These exceptions ought not to have been presented by counsel or allowed by a judge in the form in which they come before us. Romana v. Boston Elev. Ry., 105 N. E. 598.

[1] We do not attempt to make any statement of the case. The judge rightly ruled that the issues were for the jury. It could be found that the accident was caused by a defect in the brakes of the car or the apparatus connected therewith, and not by any negligence of the plaintiff or by any unjustifiable violation on his part of the rules put in evidence by the defendant. It could be found also that this defect was due to the negligence of the defendant. The jury had a right to return a verdict against the defendant. Whether this was in accordance with the weight of the evidence is not for us to consider. The general instructions given were sufficiently favorable to the defendant.

[2] But the judge instructed the jury that if the plaintiff was runningthe car in the proper way in every respect, and if he undertook to put on the air brake under conditions such as would naturally, if the brake had been in proper order, have made the brake work, and if, all other conditions being what they should have been, the car failed to respond to the brake as it naturally should have responded, then there was some evidence of a defect in the car.

The plaintiff had filed specifications of his claims, and had specified as the negligence of the defendant on which he relied under each of his counts ‘that the defendant had furnished him with an electric car equipped with appliances for controlling and stopping said car which were unsafe, defective and out of repair, rendering it impossible to control and to stop said car.’ His further specifications, that he intended to rely on the negligence of the defendant's superintendent, the person acting as superintendent, and the starter, added nothing to the statement of the kind of negligence relied on. At the close of the evidence, his counsel said to the judge:

‘We stake our case upon the plaintiff being furnished with a defective car, which was out of order, and they knew was out of order and improper to run.’

Then the judge said:

‘The portion of the car which is alleged to be defective is not any part except the brake. As I understand it, that would include fairly the brake shoes, the appliances for stopping the car-include the hand brake and the air brake and the shoes and...