Fournier v. Holyoke Street Railway Co.

• Decision Date: 07 January 1927
• Citation: 258 Mass. 257
• Parties: MARY FOURNIER v. HOLYOKE STREET RAILWAY COMPANY. JOHN L. FOURNIER v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

258 Mass. 257

MARY FOURNIER v. HOLYOKE STREET RAILWAY COMPANY. JOHN L. FOURNIER v. SAME.

Supreme Judicial Court of Massachusetts, Hampden.

January 7, 1927

November 23, 1926.

Present: RUGG, C.

J., BRALEY, CROSBY PIERCE, & SANDERSON, JJ.

Passenger. Negligence, Street railway.

Release. Fraud. Practice, Civil, New trial.

At the trial of an action by a woman against a street railway company for personal injuries received when she was thrown as she was entering a street car of the defendant, the plaintiff testified that, after the car had stopped on her signal, she was following her sister, that she had hold of the grab iron with her left hand and had her left foot on the step when the car started and she was "twisted all around," "fell toward the back of the car," striking her head; that she heard the starting bell when her foot was on the first step and knew that the car was going to start; that she did not hurry then, "had nothing to hurry for." A motion that a verdict be entered for the defendant was denied and there was a verdict for the plaintiff. In this court the defendant made no issue of the due care of the plaintiff or of the negligence of the defendant. Held, that

(1) The evidence warranted a finding of an invitation to the plaintiff to become a passenger, an acceptance thereof, and a starting of the car at the signal of the conductor before the plaintiff was in a position of safety;

(2) The motion properly was denied.

It is not true as an absolute proposition of law that a person cannot and does not become a passenger before he takes hold of the grab iron of a trolley car; that act is but a circumstance to justify an implication that the person desiring passage has offered himself to be carried and that such offer has been accepted by the carrier.

Inasmuch as the plaintiff in the action above described could have been found to have been accepted as a passenger without her taking hold of the car, and inasmuch as she was not bound to anticipate that the car would be started while she was in the act of getting on it, it was proper to refuse a request by the defendant for a ruling that, if the plaintiff, at the time when a "passenger in the rear vestibule assured the conductor it was safe to start the car, did not have hold of the car for the purpose of boarding it, she was not a passenger; and the defendant did not owe her the duty it owed a passenger."

Evidence at the trial of an action of tort for personal injuries, it was held, warranted a special finding by the jury that a release of the defendant from liability, signed by the plaintiff, was procured through fraud of an agent of the defendant; and a motion for a verdict for the defendant on the ground of the release which the plaintiff admitted having signed properly was denied.

A judge is not bound, as matter of law, to set aside a verdict because in his opinion it is against the weight of the evidence; if he were so bound, the result would be "the trial of facts by the court instead of the jury": the disposition of the motion lies in his sound discretion.

TWO ACTIONS OF TORT described in the opinion. Writs dated February 15, 1919, and June 16, 1924, respectively.

In the Superior Court, the actions were tried together before Callahan, J Material evidence and exceptions by the defendant are described in the opinion. There were verdicts for the plaintiffs, respectively, in the sums of $7,500 and $3,500. The defendant alleged exceptions.

The case was submitted on briefs. W.H. Brooks, J.P. Kirby, & D.H Keedy, for the defendant.

T.C. Maher, for the plaintiffs.

PIERCE, J. These are two actions of tort. In one Mary Fournier seeks to recover damages for alleged personal injuries sustained by her on December 20, 1918, at about five o'clock in the evening, when, as is alleged, she was attempting to board a street car of the defendant; in the other action her husband John L. Fournier, seeks to recover for expenses incurred by him and alleged to have been necessitated by the same injury for which Mary Fournier sues. There was no question of pleading raised at the trial. At the close of the evidence, the defendant filed a motion requesting the trial judge to direct a verdict for the defendant in each case. The motion was denied and the defendant excepted.

The evidence for the plaintiff warranted the jury in finding that on Friday, December 20, 1918, the plaintiff Mary Fournier, accompanied by her sister, walked along Blanche Street in Chicopee, intending to take a trolley car bound for Holyoke. They stopped near the corner of Blanche Street and Chicopee Street opposite a white post, at a place where the cars of the defendant regularly stop to take on and let off passengers, and waited for a car. In about ten minutes the car approached with the headlight on. As it neared the post, the plaintiff and her sister raised their hands and walked toward the tracks, distant about fifteen feet. In response to their signals the car stopped opposite the white post near which they had been waiting, and they had only a few steps to take to reach the car. The sister of the plaintiff placed one foot on the first step, and the other on the second, when the car started. The plaintiff, following, took hold of the grab iron with her left hand, and had placed her left foot on the first step when the car "started with a sudden jerk." As a result she was "twisted all around," "fell toward the back of the car," striking her head, and suffered the injuries of which she complains.

On cross-examination the plaintiff described the incident as follows: "We got to the door at about the same time, but she [her sister] got hold of the handle first. I just stepped toward, to give her the right, because she had the suit case and I took the left with my left hand. She got on the step about the same time I did. I heard the bell while my foot was on the steps. I was on the first step. After I heard the bell I knew the car was going to start. I was not behind my sister when I heard the bell. When the bell rung I had hold of the car, one foot on the step. I did not hurry when I heard the bell....