Manning v. West End St. Ry. Co.

• Decision Date: 23 May 1896
• Parties: MANNING v. WEST END ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

166 Mass. 230

44 N.E. 135

MANNING v. WEST END ST. RY. CO.

Supreme Judicial Court of Massachusetts, Middlesex.

May 23, 1896

COUNSEL

G.L. Mayberry, for plaintiff.

M.F Dickinson, Jr., and Walter Bates Farr, for defendant.

OPINION

HOLMES, J.

This is an action for personal injuries caused by the plaintiff's being struck by a switch stick which flew from the hands of a conductor of the defendant as he was using it on top of an electric car to free the trolley, which had caught in a frog at the junction of some overhead wires. The case is here on the defendant's exceptions.

The first question argued is the usual one of the plaintiff's care. What is due care depends on the nature of the accident and the degree of danger, according to common experience under the known circumstances. The plaintiff was on the sidewalk, either walking or momentarily stopping. Putting it in the most favorable way for the defendant, the jury at least were authorized to find that the plaintiff was not bound to take special precautions against such a missile from such a source. The jury were instructed that if the plaintiff stopped and stood there simply to look, and the accident took place while he was doing so, he could not recover. This certainly was sufficiently favorable to the defendant. Smethurst v. Barton Square Ind. Cong. Church, 148 Mass. 261, 266, 19 N.E. 387.

Next it is said that there was no evidence of negligence on the part of the defendant. The conductor must be taken to have known that he was in a public street, in which there were or might be travelers, and therefore must be taken to have known that, if the stick did fly with violence from his hands, there was a danger to passers, similar, although less in degree, to that which would have attended the firing of a pistol into the way. Apart from the possibility that he might receive an electric shock sufficient to make him let go his hold, the jury were at liberty to say, from their experience as men of the world, that under such circumstances such an accident commonly does not happen, unless the stick is carelessly handled; that it is in the power of the holder to see that he does not submit it to such a strain as to make it possible that it should be torn from his hands,--and to infer from those general propositions of experience that there was negligence in the particular case. See Graham v. Badger, 164 Mass. 42, 47, 41 N.E. 61; Uggla v. Railway Co., 160 Mass. 351, 35 N.E. 1126; White v. Railroad Co., 144 Mass. 404, 11 N.E. 552.

A ruling was asked that there was no evidence that the accident was caused by defective construction of the trolley wires and trolley pole. The question is not what we should have found had the question been submitted to us. We cannot say that the jury were not warranted in finding the arrangements defective from the fact of the trolley leaving the wires and getting so firmly jammed, and the...