Cutts v. Boston Elevated Ry. Co.
| Citation | 202 Mass. 450,89 N.E. 21 |
| Parties | CUTTS v. BOSTON ELEVATED RY. CO. |
| Decision Date | 21 June 1909 |
| Court | United States State Supreme Judicial Court of Massachusetts |
H. I. Cummings, for plaintiff.
W. G Thompson and S. H. E. Freund, for defendant.
On the morning of November 19, 1902, the plaintiff took a surface car of the defendant railway, which ran around the Dudley Street loop. His intention was to take an elevated train from Dudley street to Scollay Square. He was a blacksmith by trade and the proprietor of a shop on Hawkins street, was 39 years of age and familiar with the defendant's station at Dudley street. He was on his way to his day's work and had a 'bundle of lunch' in his hand.
To reach the level of the elevated trains the surface cars ascend at 4 1/2 per cent. grade for 200 feet to a point which is practically the beginning of the curve of the loop. From that point, for the distance of about 114 feet, the grade is 2 per cent.; then for 95 feet the track is level, and then the downgrade begins.
The plaintiff testified that the car on which he became a passenger started up the incline at the rate of about 7 to 8 miles an hour. The plaintiff left his seat in the center of the car and went out onto the front platform, carrying his 'bundle of lunch' in his right hand. The gate on the left was shut; that on the right was open. As he went through the door onto the front platform, the motorman shut off his power. That was before the car began to go around the curve. He 'was about to take hold of' the handle of the rail of the dasher when the motorman threw on his full power and that 'brought the car up suddenly with a jerk, something unusual, a very quick jerk,' the plaintiff was thrown back by it, it caused him 'to lose my hand hold [to quote his own words], and the sway of the car together with that, threw me off' onto a workman's platform on the right of the track. 'As near as I can remember I struck on my feet, but no sooner did I strike than I was down, and it seems to give me some sort of a peculiar twist around, and my legs, one of them, suddenly swung right over the rail, and the wheel cut it off between the foot and the knee, and cut the heel off the shoe on the other foot, and scarred my heel considerably, and scarred my legs more or less all over, and tore my clothing to pieces.'
He further testified that after the motorman shut off the power the speed decreased about one-half; that he knew the motorman put on the full power when he put on the power after slowing down, because he 'heard the handle or lever go round and strike a stop on the box there.' He thought the place where he fell was 8 or 10 feet beyond the place where the workmen's or raised platform begins; that he was lying there after the car passed. On cross-examination he testified that he had no hold of anything at any time. He further testified that he had seen passengers riding on the front platform on other occasions; that in case of 'most every car that goes up that incline,' half the passengers go out onto the front platform and half onto the rear platform while the car is still in motion; that this was true before and 'at the time of the accident'; this had been true for two or three years, ever since the road was opened; that he, the plaintiff, was the first man out on the front platform on the morning of the accident; that after the accident the car stopped within 15 feet of where he lay. He further testified that he knew that in going onto the front platform as he did he took more risk than he would have taken had he remained in his seat in the car, especially on a curve; that he was in no particular hurry, but he wanted to be ready to get off when the car got to the station where passengers cross to the elevated train, because he wanted to catch the elevated train if there happened to be one ready to go; that when he went off the car 'he went off clean and quick.' He knew that it was usual for the motorman to shut off his power and for the cars to slow down when they came to the curve, and for the power to be put on afterwards and the speed to be increased.
1. We are of opinion that on this testimony it was a question for the jury whether the plaintiff was guilty of contributory negligence. Fleck v. Union Railway Co., 134 Mass. 480. See, also, in this connection, Beal v. Lowell & Dracut Street Railway, 157 Mass. 444, 32 N.E. 653; Wilde v. Lynn & Boston R. R., 163 Mass. 533, 40 N.E. 851; Mason v. Boston & Northern Ry., 190 Mass. 255, 76 N.E. 717.
2. A majority of the court is of opinion that the jury were warranted in finding that the motorman was guilty of negligence which was a cause of the accident. The plaintiff cannot complain that the car did not maintain a uniform rate of speed. That is true under ordinary circumstances ( McGann v. Boston Elevated Ry., 199 Mass. 446, 85 N.E. 570, 18 L. R. A. [N. S.] 506), and was peculiarly true and true to the knowledge of the plaintiff, in case of a car ascending the incline in question. If all that appeared in evidence in the case at bar had been that the car slowed down as the plaintiff came through the door onto the front platform and then started with a jerk which with the sway of the car threw him off the car, the case would have come within McGann v. Boston Elevated Ry., 199 Mass. 446, 85 N.E. 570, 18 L. R. A. (N. S.) 506, Stevens v. Boston Elevated Ry., 199 Mass. 471, 85 N.E. 571, and Hunt v. Boston Elevated Ry., 201 Mass. 185, 87 N.E. 489. In such a case the evidence does not go far enough to warrant a finding that the motorman was negligent in the manner in which he started the car. Where the evidence goes further and shows that the motorman was negligent in the way he started the car there is a case for the jury. McGann v. Boston Elevated Ry., 199 Mass. 446, 448, 449, 85 N.E. 570, 18 L. R. A. (N. S.) 506; Stevens v. Boston Elevated Ry., 199 Mass. 471, 475, 85 N.E. 571; Lacour v. Springfield Street Railway, 200 Mass. 34, 85 N.E. 868. If the motorman, when starting ahead after slowing down, in fact threw on the whole power at once and with a rush in place of putting it on slowly, we cannot as matter of law rule that he was not negligent in the way he started the car ahead. The evidence warranted a finding that the motorman did start ahead in that way. The plaintiff testified that after slowing down the motorman 'threw on his full power which brought the car up suddenly with a jerk, something unusual, a very quick jerk, which of course threw me back, caused me to lose my hand hold, and the sway of the car, together with that, threw me off'; that he 'heard the handle or lever go round and strike a stop on the box there'; and that he 'went off clean and quick.' The same act of negligence was the negligence in Beal v. Lowell & Dracut Street Ry., 157 Mass. 444, 32 N.E. 653. The learned counsel for the defendant has urged...
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