Galligan v. Old Colony St. Ry. Co.
| Decision Date | 30 October 1902 |
| Citation | 182 Mass. 211,65 N.E. 48 |
| Parties | GALLIGAN v. OLD COLONY ST. RY. CO. (two cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Richard W. Nutter, for plaintiffs.
Henry F. Hurlbut and Damon E. Hall, for defendant.
The story of the accident which caused the injuries for which compensation is sought is not now in dispute. The street railway on which the plaintiffs were passengers was located in March, 1898, and constructed and put in operation in the summer of that year. On December 23, 1900, in the evening after dark, the car, properly equipped and manned, was running from Providence to Taunton, and it was conceded that the accident was not due to negligence of the persons by whom it was controlled. The tracks were within the bounds of a highway; not in that part used for common travel, but in a cut or depression excavated for them through a ledge. The side of this cut most distant from the part of the way fitted and used for ordinary travel was from 8 to 10 feet high and from 4 to 6 feet from the nearer rail, and was nearly or quite vertical for 5 or 6 feet up, and then sloped back at a slight angle. In it was a cleft beginning 2 1/2 or 3 feet higher than the rail, and running in the shape of a V to the top of the ledge at a point about 8 feet above the rail and about 10 feet back, measured horizontally. In the cleft was earth or soil. After the passage of the next preceding car which went through about half or three-quarters of an hour before, the earth in the cleft caved, and a stone rolled down out of it, and stopped between the rails. The stone was oval or rounded, and of such size that when the car on which the plaintiffs were came in contact with it the car was derailed, and the plaintiffs were hurt. At the trial they sought to recover under counts which alleged that the defendant so unskillfully and improperly cared for the embankment that the stone was permitted to roll out of it upon the track, in consequence of which the car was derailed, and the injuries complained of sustained. After a ruling, unobjected to, that there was no evidence to warrant a finding that the accident was due to those in control of the car, the cases were sent to the jury, who returned verdicts against the plaintiffs.
The defendant, among other requests, had asked the court to instruct the jury as follows: '(4) The burden is upon the plaintiff in these cases to show that the accident was caused by the negligence of the defendant or its servants and agents, and the mere happening of the accident is no evidence of negligence.' '(8) The care which the defendant was bound to exercise with reference to the ledge or embankment was reasonable care, and not the highest degree of care.' The court did not give the rulings in the language requested. After the charge the defendant's counsel saved the exceptions because the court declined to give certain rulings which the defendant had requested. Counsel for the plaintiffs then said, 'And for the plaintiffs, if your honor will save 4 and 8 of the defendant's requests which were given,' to which the court replied, 'Well, all right.' Aside from the effect of this colloquy no exception was taken by the plaintiffs, and they made no specific objection to any part of the charge. The defendant contends that, as neither of the two requests specified was in fact given in terms, no exception to the charge was saved by the plaintiffs. We think this view too narrow, and that, while the plaintiffs cannot rely upon possible inconsistencies between different sentences of the charge relating to the same subject, not having pointed them out at the time, still it is open to them to question the general correctness of the charge upon the two points treated of in the requests mentioned.
1. We are of opinion that the plaintiffs cannot complain of the instruction that the mere happening of the derailment or the mere happening of the accident was not in and of itself evidence of negligence on the part of the defendant. The plaintiffs showed not only a derailment, but also that it was caused by the presence between the rails of a large stone which had rolled upon the track from the adjoining bank; and the issue which was treated at the trial as the...
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