Mcgann v. Boston Elevated Ry. Co.

• Decision Date: 04 September 1908
• Citation: 199 Mass. 446,85 N.E. 570
• Parties: McGANN v. BOSTON ELEVATED RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

199 Mass. 446

85 N.E. 570

McGANN v. BOSTON ELEVATED RY. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

September 4, 1908

COUNSEL

Vahey, Innes & Vahey, for plaintiff.

Robert G. Dodge and Sanford H. E. Freund, for defendant.

OPINION

LORING J.

This action is brought by a passenger to recover for injuries suffered by him when he was thrown or fell from a car of the defendant at about 8 o'clock in the evening of October 24, 1903.

The car in question was a closed car operated by electricity. The plaintiff got on at Watertown Square, intending to get off at Cottage street in East Watertown.

The car in question was running east on Mt. Auburn street. The white post for the stopping place next before Cottage street is at School Lane. Cottage street is 630 feet further on than School Lane. The plaintiff was thrown off at a point 245 feet west of Cottage street, that is to say, as the car in question was going it had to go 245 feet beyond the place where the plaintiff was thrown off in order to arrive at Cottage street.

The plaintiff's story was that at or about School Lane he signaled the conductor to stop at Cottage street. The conductor 'bowed his head, and then the car after it went a good ways, slowed up, and I thought it was at Cottage street, and I got up, and as soon as I got out on the platform it made a sudden jump and threw me right on my head and I didn't know anything more.' In another part of his testimony the plaintiff's description of what happened was that 'the car gave a jerk.' It is admitted that the car did not come to a stop; the plaintiff's testimony as to that was 'it was almost at a full stop.' The defendant's tracks from School Lane to Cottage street are straight and the street was well lighted.

In addition to his own testimony the plaintiff introduced that of one Neal, who was walking on the right-hand sidewalk of Mt. Auburn street, in the direction in which the car was going and just ahead of it. He also put on the stand one Burke, a policeman, who was standing opposite Cottage street on the other side of Mt. Auburn street.

Neal testified that the car was 'coming apparently slowly, and I looked around. It started forward, and a body came out onto the street.' On being asked to state what kind of movement the start was, he testified: 'Well, it was a start, going from slowing down to a speed--to a--to quite a speed.'

Burke testified: 'I saw the car slow down, I saw it start ahead quickly. It started with a sudden jerk or jump. It started as though--when I have ridden on cars--the motorman would let off the brake and it would start and go ahead.'

The plaintiff, in going on the platform to get off when the car reached Cottage street, took the risk of all accidents not arising from negligence on the part of the defendant. Stewart v. Boston & Providence R. R., 146 Mass. 605 606, 16 N.E. 466; Weinschenk v. New York, New Haven & Hartford R. R., 190 Mass. 250, 251, 76 N.E. 662.

We are of opinion that the evidence of the plaintiff did not warrant a finding that the defendant was negligent. A plaintiff does not make out a case by proving that an electric car gave a jerk or similar motion and that the was hurt. Byron v. Lynn & Boston R. R., 177 Mass. 303, 58 N.E. 1015; Timms v. Old Colony Street Ry., 183 Mass. 193, 66 N.E. 797; Jameson v. Boston Elevated Ry., 193 Mass. 560, 79 N.E. 750; Sanderson v. Boston Elevated Ry., 194 Mass. 337, 80 N.E. 515. See, also, in this connection Stewart v. Boston & Providence R. R., 146 Mass. 605, 16 N.E. 466; Snowden v. Boston & Maine R. R., 151 Mass. 220, 222, 24 N.E. 40; Holland v. West End Street Railway, 155 Mass. 387, 388, 29 N.E. 622; McCauley v. Springfield Street Railway, 169 Mass. 301, 302, 47 N.E. 1006; Foley v. Boston & Maine R. R., 193 Mass. 332, 334, 335, 79 N.E. 765, 7 L. R. A. (N. S.) 1076.

The possibility of an electric car giving a jerk is an incident of travel which every passenger must expect. To make out a case of negligence on the part of a defendant railway company in such a case the plaintiff must go further and introduce evidence that the jerk in question was due to a defect in the track or to negligence in the operation of the car. See Byron v. Lynn Boston R. R., 177 Mass. 303, 305, 58 N.E. 1015; Timms v. Old Colony Street Ry., 183 Mass. 193, 194, 66 N.E. 797. See, also, in this connection Weinschenk v. N. Y., N.H. & H. R. R., 190 Mass. 250, 252, 76 N.E. 662; Foley v. Boston & Maine R. R., 193 Mass. 332, 335, 79 N.E. 765, 7 L. R. A. (N. S.) 1076.

The description of the jerk given by the witnesses in the case at bar, so far as the character of it is concerned, is well within the previous cases in which it was held that the plaintiff had not made out a case. Byron v. Lynn & Boston R. R., 177 Mass. 303, 58 N.E. 1015; McCauley v. Springfield Street Ry., 169 Mass. 301, 47 N.E. 1006; Timms v. Old Colony St. Ry., 183 Mass. 193, 66 N.E. 797; Jameson v. Boston Elevated Ry., 193 Mass. 560, 79 N.E. 750. For similar cases of steam railroads, see Stewart v. Boston & Providence, R. R., 146 Mass. 605, 16 N.E. 466; Snowden v. Boston & Maine R. R., 151 Mass. 220, 24 N.E. 40; Weinschenk v. New York, New Haven & Hartford R. R., 190 Mass. 250, 76 N.E. 662; Foley v. Boston & Maine R. R., 193 Mass. 332, 79 N.E. 765, 7 L. R. A. (N. S.) 1076.

To take the case out of those decisions the plaintiff's counsel rely on the fact that it...