Froio v. Eastern Massachusetts St. Ry. Co.

• Decision Date: 31 January 1924
• Citation: 247 Mass. 474,142 N.E. 255
• Parties: FROIO v. EASTERN MASSACHUSETTS ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

247 Mass. 474

142 N.E. 255

FROIO

v.EASTERN MASSACHUSETTS ST. RY. CO.

Supreme Judicial Court of Massachusetts, Plymouth.

Jan. 31, 1924.

Exceptions from Superior Court, Plymouth County; Joseph Walsh, Judge.

Action of tort by Pantaleone Froio against the Eastern Massachusetts Street Railway Company to recover for personal injuries sustained while a passenger on one of defendant's cars. Verdict for plaintiff, and defendant brings exceptions. Exceptions sustained.

H. C. Thorndike, of Brockton, for plaintiff.

T. H. Buttimer, of Boston, for defendant.

CROSBY, J.

This is an action to recover for personal injuries, received by the plaintiff while a passenger on one of the defendant's cars. The accident resulted from a collision of the car with a motor truck which was crossing the street railway track. The car in question was being operated by one person who acted both as motorman and collector of fares. The only questions presented for our decision arise by reason of certain exceptions to the charge of the presiding judge.

The judge instructed the jury that if they found that the electric car collided with the motor truck and there was no explanation as to what the motorman was doing, or that it was a collision without explanation, and would not ordinarily have occurred if the motorman had been exercising reasonable care, they could find that there was some negligence.

This instruction evidently was based upon the assumption that the doctrine of res ipsa loquitur is applicable. ‘The mere occurrence of the collision on the highway was no evidence of the negligence of the defendant. This is the rule of our own cases.’ Reardon v. Boston Elevated Railway, 245 Mass. --, 141 N. E. 857, and cases therein collected.

The judge also instructed the jury in substance that the operator of an electric car, on approaching corners or vehicles coming in the opposite direction, is under obligation to give warning by sounding a whistle or gong and to slow down the speed and keep his car under control so that as he nears an intersecting street he will not be proceeding at an unreasonable rate of speed.

This instruction was erroneous. While the duty rests upon the operator of an electric car at all times and in all places to manage his car with a high degree of care, he is not required by law to give warning signals or slacken the speed of his car as the jury were instructed, nor was he required to do so by any rule of his employer, so far as appears from the...