Desautels v. Massachusetts Northeastern St. Ry. Co.

• Decision Date: 10 September 1931
• Citation: 177 N.E. 578,276 Mass. 381
• Parties: DESAUTELS v. MASSACHUSETTS NORTHEASTERN ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

276 Mass. 381

177 N.E. 578

DESAUTELS

v.MASSACHUSETTS NORTHEASTERN ST. RY. CO.

Supreme Judicial Court of Massachusetts, Essex.

Sept. 10, 1931.

Exceptions from Superior Court, Essex County; D. F. Dillon, Judge.

Action by Ella M. Desautels against the Massachusetts Northeastern Street Railway Company. Verdict for defendant, and plaintiff brings exceptions.

Judgment for defendant.

W. G. Todd, of Boston, for plaintiff.

J. P. Cleary, of Haverhill, for defendant.

FIELD, J.

This is an action of tort to recover damages for personal injuries alleged to have been sustained by the plaintiff when riding as a passenger in an electric street car, owned and operated by the defendant, by reason of the defendant's negligence. A verdict for the defendant was directed upon its motion therefor and the plaintiff excepted. The parties agreed ‘that if the court was in error in directing a verdict, judgment should be entered for the plaintiff in the sum of $3,500; otherwise, judgment to be entered for the defendant.’

The plaintiff contends that the operator of the car started it negligently as she was in the act of leaving it. The evidence tended to show the following facts: The plaintiff was a passenger on a ‘one-man car’ owned and operated by the defendant. There were six cross seats on each side of the aisle, and side seats in front of the cross seats. The plaintiff sat on the fifth cross seat from the front on the right as the car proceeded. The first cross seat was eight to ten feet from the motorman and the seat on which the plaintiff sat was an equal distance back of the first cross seat. The plaintiff signalled for the car to stop and remained seated until it stopped. While two women who had been seated on one of the side seats were alighting, the plaintiff walked forward until she was about at the first cross seat, then the car started and the plaintiff was thrown back some distance. Her left knee struck the iron part-which was about at the height of her knee from the floor-of the third cross seat from the front on the left, and she fell to the floor. She testified that ‘her head was in the aisle * * * her feet were also; and * * * she was then about on a line with the seat on which she had originally been sitting,’ and that her knee was hurt when it struck the seat. There was medical testimony as to the nature of the injury.

The verdict was directed rightly.

The evidence did not warrant a finding that the car was started negligently in respect either to time or to manner of starting. Under the decision of Gollis v. Eastern Massachusetts Street Railway, 254 Mass. 157, 149 N. E. 607, it is not negligence merely to start a car ‘when a passenger is in the act of leaving it, if at the time he is within the body of the car.’ Page 158 of 254 Mass.,149 N. E. 607. See also, Chandler v. Boston Elevated Railway, 261 Mass. 230, 158 N. E. 669. There was no material difference as to the time of starting the car between the facts of the Gollis Case and those of the case at bar.

A ‘common carrier of passengers is not responsible for those sudden jolts or jerks which are the ordinary incidents of travel upon electric cars' (Chandler v. Boston Elevated Railway, supra, page 231, of 261 Mass., 158 N. E. 669, see also Work v. Boston Elevated Railway, 207 Mass. 447, 448, 93 N. E. 693;Walsh v. Boston Elevated Railway, 256 Mass. 17, 18, 152 N. E. 64), and the evidence in this case did not warrant a finding that the car was started with anything more than such an ordinary jolt or jerk.

There was no direct evidence of the way in which the operator strated the car. The plaintiff's testimony that she saw his hand on the ‘control’ and that he ‘turned the control all around’ was not evidence that he was negligent in applying power. The ‘construction and operation of the appliances by which the current is transmitted to the moving mechanism of the car’ are not matters of general knowledge (Nolan v. Newton Street Railway, 206 Mass. 384, 389, 92 N. E. 505, 506), and this testimony without further explanation would not support the conclusion that the operator improperly ‘threw on the whole power at once and with a rush in place of putting it on slowly,’ so as to bring the case within Cutts v. Boston Elevated Railway, 202 Mass. 450, 454, 89 N. E. 21, 22. Compare Convery v. Eastern Massachusetts Street Railway, 252 Mass. 418, 421-422, 147 N. E. 824.

The plaintiff's statement that when the car started she felt ‘as if somebody pulled a carpet from under her feet, and * * * the car seemed to leap forward,’ though vivid, was not such a plain description of fact, rather than ‘mere expletive or declamatory words or phrases,’ as to warrant an inference that the car was started in an unusual way. Foley v. Boston & Maine Railroad, 193 Mass. 332, 335, 79 N. E. 765,7 L. R. A. (N. S.) 1076;Seidenberg v. Eastern Massachusetts Street Railway, 266 Mass. 540, 542, 165 N. E. 658, and cases cited. This evidence...