Madden v. Boston Elevated Ry.

Decision Date01 December 1933
Citation188 N.E. 234,284 Mass. 490
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court


Appeal from Municipal Court of Boston, Appellate Division; J. G. Brackett, Judge.

Action of tort by Loretta W. Madden against the Boston Elevated Railway. From an order of the Appellate Division dismissing a report of the trial judge who found for defendant, plaintiff appeals.

Order dismissing report affirmed.B. J. Killion, of Boston, and E. Donovan, of Dorchester, for appellant.

J. J. O'Hare, Jr., of Boston, for appellee.

WAIT, Justice.

The plaintiff appeals from an order of an appellate division dismissing a report. She was injured on July 13, 1931, in Malden, while a passenger on a bus owned and managed by the defendant street railway. She brought suit in the Municipal Court of the City of Boston counting upon negligence of the defendant or its servants. After the close of evidence, the presentation of requests and arguments of counsel, the trial justice, on motion of the defendant, went from Boston to the defendant's garage in Medford and there viewed the bus concerned in the accident. The garage is situated outside the territorial jurisdiction of the court. He was accompanied by counsel for the plaintiff and defendant, by the defendant's foreman who had testified at the hearing, and by one Long, called as an expert automobile mechanic by the plaintiff, who also had testified at the hearing. At the hearing there was evidence that the axle of the bus had broken somewhere inside the wheel, the left rear double wheel had rolled away, and the bus had then bumped along on the street surface for a distance of one hundred feet before stopping. Witnesses described the appearance of the broken axle at the point of the break.

At the view after the wheel then on the bus had been taken off and the axle exposed, the trial judge asked the foreman where the break of July 13 had occurred. The foreman indicated a point on the axle; and, in answer to the judge's question whether the wheel could have come off had the break been further in on the axle, answered ‘No,’ and demonstrated, pointing out where the drum was attached and saying, ‘If the break occurred inside this drum the wheel would not come off.’ The judge asked the foreman where the broken axle was. The foreman went away and returned with a new axle which he laid on the floor and said: ‘This is a new axle and just the same as the axle which broke on July 13, 1931.’ He said he did not know where the broken axle was and could not find it, to which the judge replied: ‘It is unfortunate, but I am not finding that you cannot find it on purpose.’ The judge asked a few further questions as to how the wheel was attached to the bus. No objection or exception was raised or taken by either counsel at the view to the conduct of the judge; and no questions were asked by either of them.

The judge gave all instructions requested by the plaintiff, found specially: ‘I find as a fact that the accident was due to the breaking of an axle owing to a latent defect therein, which could not have been discovered by a most careful and thorough examination. See Ingalls v. Bills, 9 Metc. 1,43 Am. Dec. 346; and found for the defendant.

In due course, the plaintiff filed a motion for new trial assigning as reasons that the finding (1) is against the evidence, (2) is against the evidence and the weight of the evidence, (3) is against the law, and (4) results in a failure of justice. Later she added as reasons by amendment (5) that the court was in error and without jurisdiction to hear evidence on the view taken at Medford, and (6) upon the ground of newly discovered evidence. At the hearing she filed many requests for rulings. She called one Orcutt, an inspector of buses for the department of public utilities of the Commonwealth, who was examined at great length on direct and cross-examination and was questioned by the judge. He testified that he had examined the broken axle in the course of his duty and he described the break. His description differed from any given at the trial. In his opinion the break was due not to a latent defect but to a condition of construction and assembly of the rear axle common to all buses of the model of the bus in question, which resulted in many and frequent breaks of axles, so many and so frequent that a different build of axle was being made by the White Company. He testified that no one could tell how long a new and perfect axle would last. If the strain possible owing to its mechanical make-up occurred, the axle would go, the wheel would come off, the chauffeur would lose control, and the bus must bump along until it stopped. The snapping off of the rear axle has been the one weak spot in the model 50-A White bus. Nevertheless the department had approved buses of that model for use by the defendant; although the defendant was getting rid of this model bus as they wore out.

Further testimony by the expert Long, who had testified at the trial, was introduced supporting the statements of witness Orcutt as to the general experience of users of the White buses model 50-A with regard to the snapping of rear axles. Orcutt testified he had discussed this experience with the superintendent of equipment of the defendant and with the foreman; and said: ‘There is nothing, to my mind, in any way, shape or manner, in this case, where the Boston Elevated Railway was at fault.’

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