Harrington v. Boston Elevated Ry. Co. (In Re Boston Elevated Ry. Co.)

• Decision Date: 28 February 1918
• Parties: HARRINGTON v. BOSTON ELEVATED RY. CO. In re BOSTON ELEVATED RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

229 Mass. 421

118 N.E. 880

HARRINGTON

v.BOSTON ELEVATED RY. CO.

In re BOSTON ELEVATED RY. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 28, 1918.

Exceptions from Superior Court, Suffolk County; Lloyd E. White, Judge.

Action by Nettie E. Harrington against the Boston Elevated Railway Company. There was a verdict for plaintiff, and defendant excepts; its petition to establish exceptions being also filed and reported by a commissioner to the Supreme Judicial Court. Petition for allowance of exceptions allowed, and exceptions overruled.

J. Weston Allen and Henry W. Packer, both of Boston, for plaintiff.

John T. Hughes, of Boston, for defendant.

RUGG, C. J.

This is an action of tort to recover damages for personal injuries received by the plaintiff while attempting to board a car upon an elevated train of the defendant at the North Station in Boston shortly before midnight, at a time when extensive changes were under way rendered necessary by the construction of the Washington Street tunnel. The location of the tracks and the platform were temporary and the plaintiff received injuries by stepping into a space between the station platform and the car. It was held when the case was here in 221 Mass. 299, 108 N. E. 943, that the plaintiff was entitled to go to the jury. The main facts there are narrated and need not be repeated here. Different questions of law are presented now.

[2] 1. The plaintiff was permitted, subject to the exception of the defendant, to show that there were several persons in uniform and apparently employés of the defendant standing in a group outside the door from the station to the platform, and that after passing them she saw no other employé or person in uniform on the platform, and that a brakeman or guard standing between two cars near where she went into the hole said nothing to her in way of warning. In this there was no error. The design of the platform, the space between it and the cars, and the relation of the rails to the platform, were not permanent and were established by the defendant in accordance with its own plans. These plans were not approved by any public board. They were not inflexible nor imperatively required in that precise form by the scheme adopted by the public authorities and imposed on the defendant. There was considerable latitude of choice to the defendant in the determination of these details. The relation of tracks to platform, as it had been before the construction of the changes had begun, was more nearly straight and there was less space for the passenger to step over in going from the platform to the car. This was the first time the plaintiff had been at this station since the changes had been in progress. Whether under these transient conditions it was reasonable for the defendant, in the performance of the duty owed by it to its passengers, to provide guards or to give warning, were questions of fact for the jury. Plummer v. Boston Elev. Ry., 198 Mass. 499, 508-510, 84 N. E. 849;Brisbin v. Boston Elev. Ry., 207 Mass. 553, 93 N. E. 572. The case is quite different from those of which Falkins v. Boston Elev. Ry., 188 Mass. 153, 74 N. E. 338,Willworth v. Boston Elev. Ry., 188 Mass. 220, 74 N. E. 333,Hawes v. Boston Elev. Ry., 192 Mass. 324, 78 N. E. 480, and Seale v. Boston Elev. Ry., 214 Mass. 59, 100 N. E. 1020, are examples, where it has been held that, the platform being constructed by the transit commission, the defendant is not responsible for space between it and the cars even though the stop may be made opposite a curve, and that there is no obligation resting upon the defendant, in the absence of disorder, to give warning of the space to persons about to enter or alight from cars. The extent of the space between the car and platform is not the sole test. Where the structures are permanent a much wider space than that here disclosed is of no consequence in view of the conditions laid upon the defendant by the various statutes. Hilborn v. Boston & Northern St. Ry., 191 Mass. 14, 77 N. E. 646;Anshen v. Boston Elev. Ry., 205 Mass. 32, 91 N. E. 157. See, also, Ryan v. Manhattan Ry. Co., 121 N. Y. 126, 23 N. E. 1131. But the circumstances of the case at bar are quite different. The relation of platform to track was not intended to remain the same for a long time. It was unlike what it had been before. There was evidence that the space between car and platform might have been much reduced. Perhaps it was deeper and hence more dangerous than the spaces commonly disclosed in this class of cases.

For the same reason it was not error to deny the defendant's requests for rulings to the effect that the defendant was not required to give any notice of the space and that, if the space was only ten inches, the plaintiff could not recover. Harrington v. Boston Elev. Ry., 221 Mass. 299, 108 N. E. 943.

[4] Moreover a considerable discretion was vested in the trial judge in admitting evidence to show the incidents immediately preceding and attendant upon the accident. Such facts cannot be said to be without bearing upon the due care of the plaintiff, and may have been of assistance in enabling the jury to understand the conditions which confronted her. All the circumstances under which an injury is received ordinarily may be put in evidence.

2. The admission of the question, whether the plaintiff as she was about to enter the car was ‘in a position where’ she ‘would have heard if anything had been said in regard to the space,’ was not reversible error. The pertinent inquiry in that connection was her precise position with reference to the brakeman. Where she stood and what was her posture, like facts respecting him, and the distance between the two, were material. While it would have been better practice, because less liable to run into an incompetent field, to have developed these basic facts by appropriate interrogatories, an abbreviated question including all these circumstances, subject as it was to cross-examination, does not appear to have been injurious to the defendant. See Slattery v. N. Y., N. H. & H. R. R., 203 Mass. 453, 457, 89 N. E. 622,133 Am. St. Rep. 311. It is distinguishable from the question, whether she would have been likely to hear, if anything had been said, held incompetent because a mere matter of opinion in Commonwealth v. Cooley, 6 Gray, 350.

3. There was no reversible error in permitting the plaintiff to show by examination of the defendant's engineer that plan 3, which delineated the temporary location of platform and tracks as they were for a period of about eight weeks including the time of the plaintiff's accident, was not approved by the Railroad Commission. It was pertinent as indicating that the defendant was not entitled respecting these structures to the protection against liability established by the decisions as to permanent structures, such as Collins v. Boston Elev. Ry., 217 Mass. 420, 105 N. E. 353,51 L. R. A. (N. S.) 1154, where earlier cases are collected. Since the presiding judge ruled that there was no duty resting on the defendant to have the plan approved and hence no negligence in not securing such approval it is not necessary to consider whether St. 1897, c. 500, § 6, requiring approval in certain instances applies to this kind of construction.

4. An expert engineer was permitted to testify that in his opinion the temporary platform in use at the time of the plaintiff's accident was not a reasonably proper construction. This was not a mere opinion about common things of ordinary construction, as to which the simplicity of common sense is a safer guide than the niceties of technical learning. Whalen v. Rosnosky, 195 Mass. 545, 81 N. E. 282,122 Am. St. Rep. 271;Gleason v. Smith, 172 Mass. 50, 51 N. E. 460;Walker v. Williamson, 205 Mass. 514, 91 N. E. 885;Lynch v. Larivee Lumber Co., 223 Mass. 335, 340, 111 N. E. 861;Amstein v. Gardner, 134 Mass. 4, 9;Spokane & Inland R. R. v. United States, 241 U. S. 344, 351, 36 Sup. Ct. 668, 60 L. Ed. 1037. It involved, as a necessary element of an intelligent answer, engineering skill directed to complicated conditions under which the platform, the curves, grades and alignment of tracks for the temporary uses must be constructed and maintained. His answer means that under these conditions an arrangement of structures might have been designed and built offering less hazard to the traveler than those adopted by the defendant. Manifestly this was outside the range of common knowledge. It was not an inference from proven facts as to which men of ordinary experiencewould not be left in doubt. New England Glass Co. v. Lovell, 7 Cush. 319, 321;Lang v. Terry, 163 Mass. 138, 143, 39 N. E. 802;Bourbonnais v. West Boylston Mfg. Co., 184 Mass. 250, 254, 68 N. E. 232;Roberts v. Vroom, 212 Mass. 168, 98 N. E. 687.

5. A witness called as an expert engineer, having given evidence at length respecting matters within his special department of knowledge, on redirect examination was permitted to testify that he had been employed by the defendant as an expert in engineering. It is not an uncommon practice to examine a witness, offered as an expert, respecting his experience and the various persons who have availed themselves of his superior knowledge. Much must be left to the discretion of the trial judge. The question and answer here complained of cannot be said as matter of strict law of evidence to have been incompetent. It would have been a much better exercise of judicial discretion to have excluded the evidence. It is difficult to conceive of a case where it would not be wiser discretion in the trial judge to exclude such an inquiry altogether whenever put. Ordinarily it is preferable practice for manifest reasons not to receive such evidence. But even where testimony has been regarded as ‘very objectionable’ in this particular, its admission is not treated as reversible error if there is any justification whatever for the conduct of the presiding judge. Conness...