Cronin v. Boston Elevated Ry. Co.

• Decision Date: 24 June 1919
• Citation: 123 N.E. 686,233 Mass. 243
• Parties: CRONIN v. BOSTON ELEVATED RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

233 Mass. 243

123 N.E. 686

CRONIN

v.BOSTON ELEVATED RY. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

June 24, 1919.

Exceptions from Superior Court, Suffolk County; W. P. Hall, Judge.

Action by Annie Cronin against the Boston Elevated Railway Company. Verdict for plaintiff, and defendant excepts. Exceptions overruled.

Wilson, Juggins & Murphy, of Boston, for plaintiff.

Fletcher Ranney and Thomas Allen, Jr., both of Boston, for defendant.

CARROLL, J.

The plaintiff was a passenger on one of the defendant's cars and when descending the exit stairway of its station at Beach street, on July 30, 1916, fell and was injured. The plaintiff testified that the cause of her fall was a loose screw which projected from the tread of the top step and that the metal tread of this step was loose. She was cut and bruised as the result of the fall, and claimed she was so bruised as the result of her fall that a cancer developed on her right breast, which was later removed by an operation.

It was not questioned that the plaintiff was a passenger and by her fall was slightly injured. The defendant produced several witnesses who testified that they examined the steps upon which the plaintiff said she had fallen and could find no loose screw or tread or other defect in them. The experts called by the plaintiff testified that the injury to the breast, caused by the fall, was a sufficient cause of the cancer, one of these witnesses saying ‘that the possibility of recurrence is relatively high.’ Drs. Whitney and Fairbanks, for the defendant, testified that the blow and injury to the right breast would not be an adequate cause for a cancer. Dr. Fairbanks further stated that when he examined the plaintiff in the presence of her physician, Dr. Granger, in February, 1917, nothing was said by either the plaintiff or her physician about a bruise on the breast. There was a verdict for the plaintiff.

The defendant excepted ‘to so much of the charge as said that the jury should try to pick out one witness because it seems to neglect the question of weight of the evidence. ‘I would single out one;’ that is, both on the question of liability and damages.'

In Tufts v. Seabury, 11 Pick. 140, where the defense was that the goods sold and delivered were sold on credit, the defendant produced a witness, Chamberlain, who so testified, which testimony was denied by the plaintiff; the judge instructed the jury, if they believed Chamberlain they ought to find for the defendant, unless from the other evidence and circumstances they should find that the offer of credit was withdrawn and other terms of sale substituted. This instruction was considered erroneous because the proper instruction would have been, ‘that they should find for the defendant if upon the whole evidence they believed that a credit had been given.’ See in this connection Gray v. Boston Elevated Railway, 215 Mass. 143, 148, 102 N. E. 71.

In that part of the charge where the judge was considering the question of damages, referring to the medical experts in the case he said to the jury, ‘You may pick out one or two of these men that you say you will stand by;’ and when discussing the issue of liability after directing attention to the statements of the various witnesses called by the defendant on this question he said, ‘Is there anybody * * * of whom you can say: I am convinced by that person?’ These instruction would have been objectionable, if they directed the jury to select one or two witnesses and decide the case on their testimony alone, without weighing and considering all the evidence in the case.

To determine the question the entire charge must be considered, and, if taken as a whole the instructions were not erroneous, a single sentence or paragraph cannot be separated from the text as ground for reversible error. ‘General exceptions to specific portions of the charge where no requests are asked for, will not be sustained, unless substantial error or injustice plainly appears.’ Com. v. Meserve, 154 Mass. 64, 27 N. E. 997;Dewey v. Boston Elevated Railway Co., 217 Mass. 599, 604, 105 N. E. 366;Conners Bros. v. Sullivan, 220 Mass. 600, 607, 108 N. E. 503;Adams v. Nantucket, 11 Allen, 203. Taking the charge as a whole, the jury were clearly told many times that the plaintiff must prove her case by a fair preponderance of evidence that the burden of proof was upon her to demonstrate her case to their satisfaction. There was no substantial error in the charge, it does not appear that any injustice was done the defendant and we do not think the jury were misled.

As we have said, it was denied by the defendant that the stairway was...