Gilchrist v. Boston Elevated Ry.

• Decision Date: 17 July 1930
• Citation: 272 Mass. 346,172 N.E. 349
• Parties: GILCHRIST et al. v. BOSTON ELEVATED RY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

272 Mass. 346

172 N.E. 349

GILCHRIST et al.

v.BOSTON ELEVATED RY.

Supreme Judicial Court of Massachusetts, Suffolk.

July 17, 1930.

Report from Superior Court, Suffolk County; Summers, Judge.

Actions by Amy W. Gilchrist, p. p. a., and others, against the Boston Elevated Railway to recover for personal injuries resulting from derailment of a trailer car on which plaintiffs were passengers. Verdict for plaintiffs. On report.

Exceptions overruled.E. M. Shanley and J. J. Cummings, both of Boston, for plaintiffs.

H. F. Hathaway and J. T. Hughes, both of Boston, for defendant.

CROSBY, J.

These are actions brought by the several plaintiffs to recover for personal injuries, alleged to have resulted from the derailment of a trailer car on which they were passengers. The actions were tried together in the superior court. Under a stipulation entered into by the parties the only question submitted to the jury was whether or not the accident in which the alleged injuries occurred was caused by negligence of the defendant. The jury found that the accident was so caused. The trial judge at the request of the defendant reported the cases to this court. The plaintiffs did not introduce any evidence as to the cause of the accident, but relied upon a presumption of negligence arising from the accident itself. The defendant introduced evidence to show that the accident was caused by a bolt falling or being knocked into a switch over which the car was passing, and that it was not from any part of the defendant's equipment; it suggested that the bolt had been knocked into the switch by a passing motor vehicle.

The defendant's first exception is to the exclusion of certain specifications signed by an attorney of one of the plaintiffs. The defendant contends that the specifications in question contained statements that the accident was caused by a bolt in the switch, and that the exclusion of the specifications, and the failure of the plaintiffs to introduce evidence as to the cause of the accident, gave the plaintiffs the benefit of the doctrine of res ipsa loquitur and thereby prejudiced the defendant. The attempt of the plaintiffs to explain the cause of the accident did not deprive them from relying upon the doctrine of res ipsa loquitur. McDonough v. Boston Elevated Railway, 208 Mass. 436, 440, 94 N. E. 809;Stangy v. Boston Elevated Railway, 220 Mass. 414, 416, 107 N. E. 933. Furthermore the record does not show the contents of the excluded specifications, the defendant's purpose in offering them in evidence, or their significance upon any issue involved at the trial. The only offer of proof was: ‘I offer to show that that certain specification stands on the same footing as an answer to an interrogatory in this case.’ As it does not appear from the record that the defendant has been prejudiced by such exclusion, this exception cannot be sustained. ‘The burden is upon the excepting party to set out enough in the bill of exceptions to show that he has suffered harm by an erroneous ruling.’ Reilly v. Selectmen of Blackstone (Mass.) 165 N. E. 660, 663;Posell v. Herscovitz, 237 Mass. 513, 517, 130 N. E. 69.

The defendant's second exception is to the denial of the defendant's motion to direct verdicts in its favor. The grounds urged in support of this motion may be summarized as follows: (1) That the accident was caused by a bolt in the switch; therefore, as the cause of the accident was known, the doctrine of res ipsa loquitur is not applicable; (2) that there is no evidence that the presence of the bolt in the switch was the result of negligence of the defendant; and (3) that the plaintiffs having failed to introduce evidence of negligence of the defendant, and there being no presumption of negligence, the judge should have directed verdicts for the defendant.

It is plain that this entire argument is based upon the testimony as to the presence of the bolt in the switch, but the jury were not bound to believe this testimony, and if it was disbelieved there was no evidence as to the cause of the accident. Even if the testimony in regard to the bolt was uncontradicted, the jury had a right to find that it was not entitled to credence. Lindenbaum v. New York, New Haven & Hartford Railroad, 197 Mass. 314, 323, 84 N. E. 129;Guinan v. Famous Players-Lasky Corp. (Mass.) 167 N. E. 235.As matter of fact the testimony respecting the presence of the bolt in the switch was not uncontradicted. One Sawyer, a witness called by the plaintiffs, testified in substance that the derailed car was in such a position that one would have to lie on his stomach to reach the switch in which the defendant's witness claimed to have found the bolt. That witness had previously testified that it was not part of his duty to look at the switch at that time, and that he did so merely out of curiosity. If, as the jury could have found, the bolt was not in the switch at the time of the accident, a case is presented in which the doctrine of res ipsa loquitur is particularly applicable. ‘A railroad and its cars are constructed and adjusted to each other with the purpose that, when there is no defect in either, the cars shall remain on the track. The fact that a car runs off is evidence of defect or negligence somewhere. * * *’ Feital v. Middlesex Railroad, 109 Mass. 398, 405, 406,12 Am. Rep. 720. ‘The jury * * * well might find from common experience, if nothing further appeared, that unless either the track or the car was defective, it would not have been derailed.’ Egan v. Old Colony Street Railway, 195 Mass. 159, 161, 80 N. E. 696, 697. Cases holding that the doctrine of res ipsa loquitur does not apply are cases where the accident might have occurred despite due care of the defendant and where, therefore, the defendant's fault could not properly be inferred from the accident itself. For example, in Stangy v. Boston Elevated Railway, 220 Mass. 414, 107 N. E. 933, a coal wagon collided with the side of a...