Curtin v. Boston Elevated Ry. Co.

• Decision Date: 27 February 1907
• Citation: 80 N.E. 522,194 Mass. 260
• Parties: CURTIN v. BOSTON ELEVATED RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

194 Mass. 260

80 N.E. 522

CURTIN v. BOSTON ELEVATED RY. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

February 27, 1907

COUNSEL

Elder &amp Whitman and James Thomas Pugh, for plaintiff.

Endicott P. Saltonstall, for defendant.

OPINION

MORTON J.

Whether the plaintiff's intestate was in the exercise of due care or not in standing on the fender to adjust the trolley was clearly, we think, a question for the jury, as was also, we think, the question whether the motorman accidentally touched the controller or the brake as he was assisting plaintiff's intestate and thereby caused the car to start. The motorman testified that he was positive that he did not touch the controller and the jury could have found that the car started in some other way, though the more reasonable explanation would seem to have been that the car was started inadvertently by the motorman as he leaned forward to take hold of the trolley rope to assist plaintiff's intestate. We also assume in favor of the plaintiff that if the car started of itself it would be some evidence of a defect. But we see no evidence of negligence on the part of the defendant in failing to discover the defect if there was one. There was nothing to show that the car had ever started before from a state of rest. There was nothing to show that the car was not in first-class condition before the accident and the undisputed evidence was that it went to the end of the route after the accident 'perfectly properly.' The only cause of the accident which the expert who was called by the plaintiff suggested was that there might have been a short circuit somewhere. But if there was a short circuit neither he nor any one else attempted to show how it occurred or that it could have been discovered by the exercise of proper care on the part of the defendant. On the contrary the expert admitted, in effect, that he never knew of a car being started by a short circuit and that though he had heard of a car starting of itself he never could see any evidence of a short circuit in such cases. The cause of the accident was, therefore, wholly a matter of conjecture. Cases where negligence has been inferred from the happening of the accident do not apply. In those cases the circumstances were such that the jury were justified in inferring in the absence of any explanation that according to common experience the accident would not have happened except for the defendant's...