Larson v. Boston Elevated Ry. Co.

• Decision Date: 04 June 1912
• Citation: 98 N.E. 1048,212 Mass. 262
• Parties: LARSON v. BOSTON ELEVATED RY. CO. (two cases.)
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

212 Mass. 262

98 N.E. 1048

LARSON v. BOSTON ELEVATED RY. CO. (two cases.)

Supreme Judicial Court of Massachusetts, Suffolk.

June 4, 1912

Defendant's rule 91 is as follows:

'Gates and Doors. Rule 91. Every precaution must be taken to avoid accidents. Gates and side doors must never be opened so that passengers can board or leave a moving train, nor must trains ever be started until gates and side doors have been properly closed and all necessary signals given. In all cases of doubt adopt the safe course. Great care must be used in operating gates and doors so that passengers will not be struck or their clothing caught by same. Passengers should be induced to leave car by the side doors and enter by the end doors, provided doors and gates stop abreast of the same place on station platform. Passengers wishing to leave train must be allowed to do so before others are permitted to board.'

Its rule 99, of which there was introduced only the paragraph commencing 'always face the door,' is as follows:

'99. Car Doors. During cold or stormy weather guards and brakemen must be careful to keep the doors of the cars closed as much as possible. Open the door of the front car in your charge first and the door of the rear car afterwards, at all times and close the door of the rear car first and the forward one afterwards, so as to cause as little draft as possible through the trains.

'Always face the door when closing it in order to avoid shutting it against a person's hand or clothing; never slam the door but use care to open and shut it noiselessly.'

COUNSEL

F. J. V. Dakin and Damon E. Hall, both of Boston for plaintiffs.

Cyrus Brewer, of Boston, for defendant.

OPINION

SHELDON J.

The jury had a right to find that the female plaintiff was in the exercise of due care and had not assumed the risk of the accident which happened. The fact that she had left her seat and walked to the door of the car as it approached the station was not decisive against her. Barden v. Boston, Clinton & Fitchburg R. R., 121 Mass. 426; Worthen v. Grand Trunk Ry., 125 Mass. 99. Her putting her hand upon the door was an involuntary act done to steady herself when the lurch of the car threw her against the door. This presented a question for the jury.

There was also evidence of negligence on the part of the defendants. It is not claimed that the lurch of the car, however violent and unexpected, constituted such negligence; but the jury might find that it should have operated as a warning to the defendant's servant in charge of the door that passengers who had come or were coming to it for the purpose of leaving the car might be thrown against it and involuntarily might seize any support within their reach. If the person so in charge was the brakeman at the rear of the car, as reasonably might have been inferred, the argument in favor of the plaintiff was strengthened. McGlinchy v. Boston Eley., 206 Mass. 7, 91 N.E. 882. The reasoning in that case is closely applicable to the case at bar.

The admission in evidence of the defendant's rules 91 and 99 was excepted to. That part of rule 91 which states that 'passengers should be induced to leave the car by the side doors' was plainly competent. It tended to show the necessity of care in opening the door in question, by which passengers were expected to go out. Nor was the rest of the rule clearly inapplicable to the case presented, especially as the exceptions do not show at what stage of the trial the rules were offered and admitted. Crowley v. Boston Elev., 204 Mass. 241, 246, 90 N.E. 532. Only the second paragraph of rule 99 was admitted. This was not incompetent for similar reasons. Both of these rules on their face applied to all the doors of the car.

The testimony as to verbal instructions or directions given by the defendant to the servants as to the operation of the doors was admitted without exception, and it is not necessary to consider the question which was left undecided in Crowley v. Boston Elev., ubi supra. It was perhaps intimated in Lindenbaum v. N. Y., N.H. & H. R. R., 197 Mass. 314, 324, 84 N.E. 129, that published rules might be modified by oral instructions; but the question whether the doctrine of Stevens v. Boston Elev., 184 Mass. 476, 69 N.E. 338, firmly settled as it now is in our decisions, should be extended to cover all verbal instructions given by a superior officer or an instructor to an inferior servant, has not been passed upon by the court, and is not now presented.

We cannot say that Pasho's testimony on cross-examination and on his redirect examination had as matter of law the effect of annulling his testimony as to the oral instructions about which he testified. It was for the jury to settle the fact. Cameron v. New Eng. Tel. & Tel. Co., 182 Mass. 310, 65 N.E. 385; Tupper v. Boston Elev., 204 Mass. 151, 90 N.E. 422. The jury could believe his earlier rather than his later statements. He was not allowed to say what doors or what cases the rules in evidence were intended to cover. This was right. The rules were not ambiguous, and spoke for themselves. Any oral modification or explanation of the rules given to the operators were not excluded.

It was not wrong to admit the hypothetical question put to Dr. Hawes. The question could properly include what material facts the counsel deemed to be proved or expected to be proved, and need not include others. It would be for the jury to say what facts were proved. Hunt v. Lowell Gaslight Co., 8 Allen, 169, 85 Am. Dec. 697; McCarthy v. Boston Duck Co., 165 Mass. 165, 166, 42 N.E. 568; Burnside v. Everett, 186 Mass. 4, 6, 71 N.E. 82.

If the plaintiff's tuberculosis had been directly caused by this accident, it would of course have been an element of damages. So, if it were induced without any other intervening cause by her weakened condition or her loss of blood, itself directly caused by the...