Doherty v. Boston & N. St. Ry. Co.

• Citation: 92 N.E. 1026,207 Mass. 27
• Parties: DOHERTY v. BOSTON & N. ST. RY. CO. (two cases).
• Decision Date: 22 November 1910
• Court: United States State Supreme Judicial Court of Massachusetts

207 Mass. 27

92 N.E. 1026

DOHERTY v. BOSTON & N. ST. RY. CO. (two cases).

Supreme Judicial Court of Massachusetts, Essex.

November 22, 1910

COUNSEL

J. H Sisk, W. E. Sisk, R. L. Sisk, and J. F. Williams, for plaintiffs.

Starr Parsons and H. Ashley Bowen, for defendant.

OPINION

RUGG J.

The female plaintiff (hereafter referred to as the plaintiff) seeks to recover for personal injuries received while a passenger in one of the defendant's cars, by reason of its collision at the junction of two streets with a horse-drawn covered wagon. The track of the defendant was on the side of the street. View of the car by travelers upon the intersecting street, as well as the vision of the motorman of travelers upon that street, was obstructed until the car had nearly reached the corner of the streets. There was evidence that the speed of the car was 7 or 8 miles an hour, and that the collision occurred about 25 feet from the point where the motorman first came in sight of the wagon. Three persons were riding in the wagon, two of whom testified that they did not hear any gong or bell. Their situation was such as to make these statements some evidence that the bell or gong was not sounded. Slattery v. N. Y N.H. & H. R. Co., 203 Mass. 453, 89 N.E. 622, 133 Am. St. Rep. 311. There was evidence that the plaintiff, while either rising or turning in her seat to signal the conductor, was thrown by the jolt of the collision against the edge of the seat and injured. This is not a case where the only evidence as to the jar complained of as the cause of the injury consisted of declamatory epithets, as in Foley v. B. & M. R. R., 193 Mass. 332, 79 N.E. 765, 7 L. R. A. (N. S.) 1076. Here was the definite physical fact of a collision between a car and a horse of such force as to throw the latter to the ground, followed by the stopping of the car. From these circumstances the jury might draw inferences as to the probable effect upon passengers inside the car. Nor is this a case where there is an unexplained shock of a moving car like Timms v. O. C. St. Ry. Co., 183 Mass. 193, 66 N.E. 797, or a usual motion of a well-managed car on a good track, as in Byron v. Lynn & Boston R. R. Co., 177 Mass. 303, 58 N.E. 1015. The plaintiff offered evidence of an uncommon movement of the car due to an extraordinary cause. If there was evidence that this cause was attributable to negligence in the operation of the car, she was entitled to go to the jury. McGann v. Boston El. R. Co., 199 Mass. 446, 85 N.E. 570, 18 L. R. A. (N. S.) 506, 127 Am. St. Rep. 509.

The defendant was bound to use toward the plaintiff as its passenger the highest degree of care consistent with the reasonable...