Foley v. Boston & M.R.r.
| Decision Date | 01 January 1907 |
| Parties | FOLEY v. BOSTON & M. R. R. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
D. W. Quill and Wm. H. Pew, Jr., for plaintiff.
Henry F. Hurlburt and Damon E. Hall, for defendant.
It is at least difficult to see how, upon this testimony, there was any negligence on the part of the defendant. Timms v. Old Colony St. Ry., 183 Mass. 193, 66 N.E 797. It is a matter of common knowledge that tracks of steam railroads must be repaired and bridges replaced from time to time, and that in the performance of this work it may be necessary to use cross-overs from one main track to another. It is also common knowledge that in the performance of the duty resting upon steam railroads of rapid and prompt transportation, even in the exercise of the high degree of care required of them, there may be jolts and lurches in the management of trains. Weinschenk v. N. Y N.H. & H. R. R. Co., 190 Mass. 250, 76 N.E. 662; Byron v. Lynn & Boston Railroad, 177 Mass. 303, 58 N.E. 1015. There is nothing to show that the jar in question resulted from any negligent act on the part of the defendant, either as to speed or construction of car or track. It is true that the speed was described as 'swift,' and the jar or lurch as 'quite violent,' 'terrible,' 'awful,' 'very severe,' and 'unexpected.' Mere expletive or declamatory words or phrases as descriptive of speed or acts unaccompanied by any evidence capable of conveying to the ordinary mind some definite conception of a specific physical fact, and depending generally upon the degree of nervous emotion, exuberance of diction, and volatility of imagination of the witness, and not upon his capacity to reproduce by language a true picture of a past event, are of slight, if, indeed, they are of any, assistance in determining the real character of the fact respecting which they are used.
Passing to the other branch of the plaintiff's case, there are greater difficulties in his way. He knew of the existence of the cross-over, and that it had been there for several days and that all trains going to Beverly from Salem were obliged to use it, and that the going upon the cross-over would cause more or less jar to the train. He also testified that if he had supported himself by his hands he would not have been thrown off his balance. He took his position within, at farthest, three inches from the open door of the car,...
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