Cuddyer v. Boston Elevated Ry. Co.

• Decision Date: 29 October 1943
• Citation: 51 N.E.2d 244,314 Mass. 680
• Parties: CUDDYER v. BOSTON ELEVATED RY. CO. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

314 Mass. 680

51 N.E.2d 244

CUDDYER

v.BOSTON ELEVATED RY. CO. (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

Oct. 29, 1943.

Exceptions from Superior Court, Suffolk County; Leary, Judge.

Action by Dorothy Cuddyer, p.p.a., against Boston Elevated Railway Company for personal injuries suffered while a passenger on a street car operated by defendant and action by Michael Cuddyer, her father, against same defendant for consequential damages. The jury returned verdicts for plaintiffs, but under reserved leave the judge entered verdicts for defendant, and plaintiffs bring exceptions.

Exceptions overruled.

Before FIELD, C. J., and DONAHUE, LUMMUS, QUA, DOLAN, COX, and RONAN, Jj.

J. Lewiton and L. Jablon, both of Boston, for plaintiffs.

S. P. Sears and R. Maguire, both of Boston, for defendant.

LUMMUS, Justice.

The first action is brought by a minor for personal injuries sustained on October 16, 1935, while a passenger on a street car operated by the defendant. The second action is brought by her father for consequential damages. The jury returned verdicts for the plaintiffs, but under reserved leave the judge entered verdicts for the defendant. The cases are here on the exceptions of the plaintiffs.

The only question is whether there was evidence of negligence of the defendant. There was evidence of the following facts. The plaintiff in the first case eas a high school student seventeen years old. On the day of the accident she boarded an electric street car operated by the defendant, to go to school. The car was crowded, with about twenty people standing in the aisle. She stood with a firm grip with one hand through the loop handle on the back of a seat, and with her feet firmly on the floor. When the car arrived at Vinson Street it made a ‘very sudden, violent stop,’ such as she had never seen an electric car make before. Her hold on the back of the seat was broken, and she lost her balance and fell on a girl standing next to her. As she fell her hand was cut by a pen which that girl was carrying. The front end of the car went about a car length beyond the pole which indicated the place for a stop to take on or leave passengers. Another high school student, a boy, who was on the car, testified that the car did not show down before stopping, that the stop was a very sudden one, thirty or forty feet beyond the pole, that the stop caused standing passengers to sway ‘with the jolt,’ and that he himself, though holding onto two seats, ‘swung off and bounced on the fellow * * * standing next to him,’ who threw him ‘up on his feet.’ There was no evidence other than the foregoing as to whether the stop was for the purpose of taking or leaving a passenger, or was occasioned by some traffic emergency.

The case is not one in which the unusual character of the stop was left to be inferred from ‘mere expletive or declamatory words or phrases,’ unaccompanied by any evidence ‘capable of conveying to the ordinary mind some definite conception of a specific physical fact.’ Foley v. Boston & M. R. R., 193 Mass. 332, 335, 79 N.E. 765, 766, 7 L.R.A.,N.S., 1076; Anderson v. Boston Elevated R. Co., 220 Mass. 28, 31, 107 N.E. 376;Desautels v. Massachusetts Northeastern St. R. Co., 276 Mass. 381, 384, 177 N.E. 578;Caranicos v. New York, New Haven & Hartford R. Co., 277 Mass. 364, 178 N.E. 542;McKay v. Boston & Maine Railroad, 284 Mass. 606, 188 N.E. 390;Phinney v. Eastern Massachusetts St. R. Co., 285 Mass. 207, 209, 189 N.E. 52;Bray v. Boston Elevated R. Co., 303 Mass. 379, 21 N.E.2d 957;Maher v. Boston & A. R. Co., 304 Mass. 641, 24 N.E.2d 513. Here there was evidence of the firmness with which the plaintiff in the first case was standing, of her firm grasp upon the back of the seat, and of the physical consequences of the sudden stop upon her and others, from which we assume without deciding that the jury might infer that the stop was of such unusual suddenness and violence as to be evidence of negligence, if it was not caused by some traffic emergency. Bell v. New York, N. H. & H. R. Co., 217 Mass. 408, 104 N.E. 963;Weiner v. Boston Elevated R. Co., 262 Mass. 539, 540, 160 N.E. 259;Pickard v. Boston Elevated R. Co., 267 Mass. 133, 166 N.E. 561;Hallinan v. Worcester Consolidated St. R. Co., 273 Mass. 27, 172 N.E. 862;McRae v. Boston Elevated R. Co., 276 Mass. 82, 176 N.E. 773;Johnson v. Berkshire St. R. Co., 292 Mass. 311, 198 N.E. 154;O'Brien v. Bernoi, 297 Mass. 271, 274, 8 N.E.2d 780.

But although the stop was sudden, unusual and violent, it does not appear that it was not made necessary by some traffic emergency that arose suddenly and could not have been guarded against by due care on the part of the motorman. Craig v. Boston Elevated R. Co., 207 Mass. 548, 551, 93 N.E. 575;Niland v. Boston Elevated R. Co., 208 Mass. 476, 477, 94 N.E. 703;Id., 213 Mass. 522, 100 N.E. 554. The fact that the stop happened near a pole at which passengers were regularly left or taken on does not negative such a traffic emergency. If it had appeared that the stop was due to a collision or impending collision, the nature of the stop without more would not have warranted a finding that the motorman was negligent. Sandler v. Boston Elevated R. Co., 238 Mass. 148, 130 N.E. 104;McNiff v. Boston Elevated R. Co., 234 Mass. 252, 125 N.E. 391;Reardon v. Boston Elevated R. Co., 247 Mass. 124, 141 N.E. 857;Froio v. Eastern Massachusetts St. R. Co., 247 Mass. 474, 142 N.E. 255;Di Leo v. Eastern Massachusetts St. R. Co., 255 Mass. 140, 150 N.E. 891. The plaintiffs were in no better situation where the cause of the stop did not appear.

In Timms v. Old Colony St. R. Co., 183 Mass. 193, 194, 66 N.E. 797, 798, where a street car stopped suddenly with a jerk, it was held that a passenger could not recover without proof of the cause of the stop. The court said, ‘There is nothing to show that it [the stop] was not caused by some obstacle appearing suddenly in front, such as a horse and wagon, or a person on foot, attempting to cross the track a short distance ahead.’ This was quoted in McGann v. Boston Elevated R. Co., 199 Mass. 446, 449, 85 N.E. 570, 18 L.R.A.,N.S., 506, 127 Am.St.Rep. 309; In Conley v. Town Taxi, Inc., 298 Mass. 130, 10 N.E.2d 74, the plaintiff was injured by the sudden and violent stop of a taxicab in which he was riding. In the absence of evidence that the stop was not required by traffic conditions, it was held that a finding for the plaintiff was not warranted.

It is true that in Black v. Boston Elevated R. Co., 206 Mass. 80, 81, 82, 91 N.E. 891, 892, the question was left open whether a passenger in a street car, after proving a sudden, unusual and violent stop, must go on to prove that the stop was not made necessary by traffic conditions. There was evidence in that case...