Gilmore v. Milford & U. St. Ry. Co.

• Decision Date: 16 October 1906
• Citation: 193 Mass. 44,78 N.E. 744
• Parties: GILMORE v. MILFORD & U. ST. RY. CO. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

193 Mass. 44

78 N.E. 744

GILMORE v. MILFORD & U. ST. RY. CO. (two cases).

Supreme Judicial Court of Massachusetts, Worcester.

October 16, 1906

COUNSEL

John B. Ratigan, John E. Swift, and Jermiah J. Moynihan, for plaintiffs, Wendell Williams, J. F. C. Wheelock, G. B Williams, and S.D. Vincent, for defendant.

OPINION

MORTON, J.

These two actions were tried together, and there was a verdict for the plaintiff in each. The first is for personal injuries received by the plaintiff while a passenger in one of the defendant's cars from Hopkinton to Milford, and the second is by her husband for loss of services and for expenses incurred by him on account of the injury to her. The cases are here on exceptions by the defendant to the refusal of the court to direct verdicts for the defendant and to rule that on all the evidence neither plaintiff could recover.

The accident was caused by an explosion or a burst of flame or a flash from the controller on the car on which the female plaintiff was. The defendant contends that there was no evidence warranting a finding that what occurred was due to negligence on its part and that it was the case of an ordinary flash from the controller which there is no way to prevent and the occurrence of which would not therefore import negligence on its part. It further contends, though this is, perhaps, included in the statement of its contention already made, that there was no evidence of failure on its part to properly inspect the controller.

The defendant's contention implies that it is not liable for an injury caused by a flash from the controller which could not be prevented by any means that have yet been devised or any care that could be exercised. We doubt the correctneses of that proposition. It would seem that if the company sees fit to use a force which is so imperfectly understood that no method has yet been devised for preventing a flash form the controller, the company and not the passenger should bear the risks arising from its use.

But however that may be, there was testimony tending to show that what occurred was much more than an ordinary flash from the controller. A witness who stood in the vestibule with the motorman testified inter alia that 'the flame illuminated the whole vestibule and all the vicinity. The flame struck his coat and he could see a very slight mark there the next morning. * * * There was some smoke. The fumes from whatever burned and the smoke there was dense. * * * He was affected in his sight very badly that evening. * * * The next morning he felt the effect a little but not so much. * * * As near as he could put it the length of time of the flame would be a quarter of a minute, or a little more possibly.' On cross-examination he testified that 'the flame was a continuous fiame with...