Lindenbaum v. New York, N.H.&H.R. Co.

• Decision Date: 26 February 1908
• Parties: LINDENBAUM v. NEW YORK, N. H. & H. R. CO. et al. (two cases). ADELMAN v. SAME (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

197 Mass. 314

84 N.E. 129

LINDENBAUM

v.NEW YORK, N. H. & H. R. CO. et al. (two cases).

ADELMAN

v.SAME (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 26, 1908.

Exceptions from Superior Court, Suffolk County; William Schofield, Judge.

Consolidated actions by Sarah Lindenbaum, Julius L. Lindenbaum, Bessie Adelman, and Ike Adelman against the New York, New Haven & Hartford Railroad Company and others. Verdict in each case for the named defendant, and for plaintiffs against the other defendants, who except. Exceptions overruled.

The following is a plan of the locality of the accident:

Image 1 (5.32" X 6.46") Available for Offline Print

Bartlett & Anderson and Abram Bon, for plaintiffs.

Henry F. Hurlburt, Damon E. Hall, for defendant Boston & N. St. Ry. Co.

Choate, Hall & Stewart, for defendant Union Freight R. Co.

LORING, J.

The two women plaintiffs, whom for convenience we shall speak of as the plaintiffs, were passengers on an outward bound subway car of the Boston & Northern Street Railway Company, on the evening of July 9, 1902. This car passed from the subway onto Causeway street until it came to the switch shown on the accompanying plan, which was set to throw outbound cars on to Beverly street. A car on the inbound track, which had come along Causeway street, prevented the plaintiffs' car from going into Beverly street. This inbound car was prevented from going ahead and getting out of the way of the plaintiffs' car by a train on the Union Freight track. The Union Freight train did not stop in time, and ran into the rear end of the plaintiffs' car. The plaintiffs' car was pushed around the switch into the inbound car and the two plaintiffs were injured by the collision.

1. The plaintiffs' right to sue the two defendants jointly is settled by the recent case of Feneff v. Boston & Maine Railroad (Mass.) 82 N. E. 705.

We will deal first with the exceptions taken by the Boston & Northern Street Railway Company.

2. The Boston & Northern Street Railway Company rested on the plaintiffs' evidence so far as liability was concerned.

Its contention is that on the plaintiffs' evidence the cause of the cars coming together as they did was a matter of conjecture as in Childs v. American Express Company, 84 N. E. 128, and that the evidence of the plaintiffs did not go far enough to warrant a finding that the accident was caused by the negligence of the motorman of the defendant.

There was evidence that the engine of the train of the Union Freight Railroad Company, when first seen by the plaintiffs' witnesses, was from 15 to 40 feet away from the rails of the inward bound track on Causeway street. To make plain which is the inward and which the outward bound track, it is to be understood that the railways using these street railway tracks ran on the right. The freight train was then going 3 or 4 miles an hour. At this time the defendant's car here in question was stopping, or had come to a stop, at the Beverly street switch, and was blocked by an inward bound car which stood over the switch or so near to it as to prevent the car here in question from turning into Beverly street. There was no evidence of any obstructions in the street. On this evidence the jury were warranted in finding that the defendant's motorman, in the exercise of the care which this company owed to the plaintiffs, before he crossed the Union Freight track ought to have seen the train coming out on the Union Freight track and the inward bound car coming west on the inward track, and ought to have known the arrangement of the tracks and switches, and that if the switch was set for Beverly street he would be caught in the trap he was caught in.

[197 Mass. 319]3. The execption to the refusal to gove the twenty-ninth and thirtieth rulings asked for must be overruled.

These were 2 out of 43 requests for rulings asked for by this defendant (the Boston & Northern Street Railway Company), and 1 of the 43 consisted of 6 subdivisions.

‘(29) The defendant Boston & Northern Street Railway Company had a right to stop its cars at any point upon the street and the jury is not entitled, upon the evidence competent for it to consider, to find said defendant, its agents and servants, negligent in stopping said car at the time and place it did.

‘(30) The jury would not be warranted in finding negligence upon the part of the defendant Boston & Northern Street Railway Company because of the fact that it stopped its car at the time and place it did.’

The cause of the accident was the stopping of the defendant's outward car where it did stop. To tell the jury that ‘the defendant Boston & Northern Street Railway Company had a right to stop its car at any point upon the street,’ as the defendant requested in the twenty-ninth ruling asked for would have been misleading, and the misleading element is not cured or even helped by the rest of that ruling.

The same is true of the thirtieth ruling asked for.

The defendant now seeks to uphold his exception to the refusal to give these rulings by urging that the accident was caused by this defendant's crossing the Freight Railroad's track and not by stopping its car where it did, as distinguished from crossing the tracks. For after crossing the track it was forced to stop by the Beverly street switch and the inbound car. We have looked at the four parts of the charge to which counsel for this defendant has referred us in this connection. After a careful examination of these portions of the charge and of the charge as a whole, we are of opinion that the question was properly left to the jury, and that the charge is not open to the objection now urged. The jury were told in substance that to find for the plaintiff they must find that in stopping where they did, including all that led up to making that stop, or, more specifically, in driving the car to the place where it was stopped, the defendant's agents did not exercise the highest degree of care that was reasonable under the circumstances.

There was nothing in these requests handed in as they were as 2 out of 43 rulings asked for, which called the attention of the judge to the point which it is now urged the defendant wished to have made plain to the jury.

4. The next exception argued is to the refusal to give the rulings asked for numbered 33 a, b, and c.¹

We are of opinion that the jury were warranted in finding that the Freight Railroad train must have been in sight coming toward the junction of the two tracks before the car in question reached the crossover, and so near to the outward bound track as to warrant a finding that it was negligence for the defendant's motorman to cross. For that reason 33a and 33b were properly refused. In that case 33c was properly refused as immaterial.

5. The next exception is to the refusal to give ruling 33f.²

We are of opinion that the presence of the inward bound car across the Beverly street switch when the outward bound car here in question reached that point, in the absence of evidence of any obstruction, warranted the finding that it would have been seen by the motorman of the outward bound car if he had exercised the care owed by his company to the plaintiffs.

6. After explaining at length that the plaintiff had to prove negligence in the defendant in allowing its outward bound car to be caught in the trap it was caught in, the presiding judge summed up this matter in these words: ‘As I have said to you, gentlemen, you are to determine what the facts and circumstances were. You are to pass upon the question of the rate of speed at which the car of the Boston & Northern was run after coming out of the subway in Causeway street up to the place where the collision occurred. You are to determine upon the evidence-that is, the evidence as it stood at the time when the defendant the Boston & Northern rested-as to where the freight train of the other defendant, the Union Freight Company, was. You are to decide what the fact was in regard to the relative position of those two objects, the car on one side and the freight train on the other, the speed at which they were moving, and everything relating to their operations down to the time when the collision occurred.’

This defendant ‘excepted to that portion of the charge in which the court submitted the question to the jury to determine the rate of speed at which the car was run from the subway to the point of collision, said defendant claiming that there was no evidence upon that point at all.’

...