Lemay v. Springfield St. Ry. Co.

• Decision Date: 16 October 1911
• Citation: Lemay v. Springfield St. Ry. Co. , 210 Mass. 63, 96 N. E. 79 (Mass. 1911)
• Parties: LEMAY v. SPRINGFIELD ST. RY. CO. (two cases). RATELLE v. SAME.
• Court: Supreme Judicial Court of Massachusetts

210 Mass. 63

96 N.E. 79

LEMAY

v.SPRINGFIELD ST. RY. CO. (two cases).

RATELLE

v.SAME.

Supreme Judicial Court of Massachusetts, Hampden.

Oct. 16, 1911.

Exceptions from Superior Court, Hampden County; John C. Crosby, Judge.

Three actions, one by Mary Lemay, another by Twilla Lemay, per pro. ami, the other by Phillinese Ratelle, all against the Springfield Street Railway Company, for being thrown from its open car at a curve in its road.There were verdicts for plaintiffs, and defendant brings exceptions.Overruled on condition of amendment of declarations.

Defendant's eighteenth, twenty-fifth, and twenty-sixth requests are as follows:

‘(18) If you should find that the air brake on this car of the defendant failed to work, without premonition of warning to the motorman, and at a time when he was closely approaching a sharp curve in the defendant's tracks, so that he was confronted with unexpected peril, then it is immaterial whether the hand brake was used by him or not, if he used a reasonably proper method for checking the speed of the car.’

‘(25)The plaintiff cannot recover for any defect in the car causing the accident.

‘(26)The plaintiff cannot recover for failure to inspect the car.’

Danl.E. Leary, Edwd.W. Beattie, Jr., and Geo. D. Cummings, for plaintiffs.

Henry W. Ely and Jos. B. Ely, for defendant.

SHELDON, J.

[1]The defendant's eighteenth request could not have been given as framed.It would have excluded from consideration by the jury the question of the motorman's negligence in approaching a sharp curve at an excessive and dangerous rate of speed before he had discovered the failure of his air brake, and the question whether, if he was confronted with unexpected peril, he acted with proper diligence under the circumstances then existing and with the light that he then had.It is true that allowance must be made for one compelled to act immediately, without opportunity for deliberation, upon a sudden emergency.But this does not mean that he is necessarily excused for any error of judgment, but simply that his conduct is to be judged in view of the exigency and the need of immediate action.He is still bound to use the same degree of care to which he is ordinarily held; but due allowance must be made for the situation in which he is placed, and he is not to be held to a coolness of judgment for which there is not time.Linnehan v. Sampson, 126 Mass. 506, 511, 512,30 Am. Rep. 692;Cody v. N. Y. & New England R. R., 151 Mass. 462, 468, 24 N. E. 402,7 L. R. A. 843;Tozier v. Haverhill & Amesbury St. Ry., 187 Mass. 179, 72 N. E. 953;O'Brien v. Lexington & Boston St. Ry., 205 Mass. 182, 184, 91 N. E. 204.This is the rule stated in Brooks v. Petersham, 16 Gray, 181, 184; and we know of nothing in our decisions to the contrary.While a choice, though mistaken, may yet be prudent (Kane v. Worcester Cons. St. Ry., 182 Mass. 201, 65 N. E. 54), this must be determined by the jury, and not by the court.The instructions given to the jury upon this question were accurate and sufficient.

[2] But the twenty-fifth and twenty-sixth requests should have been given; for, although the defendant would have been liable upon a proper declaration, if the accident was caused by any defect in its car which might have been discovered and remedied by proper inspection, yet the declarations in these cases averred merely that...