Mcnamara v. Boston & M.R.r.
| Decision Date | 22 June 1909 |
| Citation | 202 Mass. 491,89 N.E. 131 |
| Parties | McNAMARA SAME v. BOSTON & M. R. R. (two cases). SAME v. CENTRAL VERMONT RY. (two cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Augustine J. Daly, for plaintiff.
Trull & Wier, for defendants.
In the first of these cases the plaintiff seeks to hold the defendant for the conscious suffering, and in the second for the death, of Michael McNamara, her intestate. His injuries and consequent death were caused by the fact that the roof of a freight car in a train of the defendant was blown from the car and fell upon him. It was not disputed that he was in the exercise of due care in the performance of his duties as a servant of the New York Central Railroad Company. The car belonged to the Central Vermont Railway Company. It had been delivered by that company to the defendant at White River Junction, Vt., on April 7, 1907, and the defendant had transported it over its lines to Lowell, and there delivered it to the New York, New Haven & Hartford Railroad Company. Thereafter, on April 23d, the defendant received this car at Boston from the Union Freight Railroad Company; and on the next day, April 24th, when this accident happened, the defendant had the car in its possession and control and was using it in the defendant's business, transporting the car over one of its lines and as a part of one of its trains. The defendant put in evidence as to its inspection of this car and as to its system of inspection, and other evidence from which the jury might have found that the blowing off of the roof was due to a faulty construction and a defective condition which were not discovered by its inspectors and were not to be discovered by any proper and reasonable inspection. The first two cases were submitted to the jury, which found for the plaintiff, and they now come before us upon the defendant's exceptions. In the third and fourth cases the defendant rested at the end of the plaintiff's testimony. At its request a verdict was ordered in its favor and the plaintiff excepted.
1. In the first case the defendant's contention is that the judge should have ruled that there was not sufficient evidence to warrant a verdict for the plaintiff, and that there was error in the judge's statement that the happening of this accident, if unexplained, was some evidence of negligence. The other exceptions in this case are waived.
The fundamental proposition contended for in the able argument of the defendant's counsel is that it was not responsible for any defects in this car which were not to be discovered by ordinary inspection. It claims the benefit of the well-recognized rule that as to the cars of other companies which it receives in the regular course of business for transportation over its road, it owes at common law to its own employés no other duty than that of having them inspected by competent and suitable inspectors, acting under a proper system and under proper superintendence, and that it may properly receive from other companies all cars which, upon such inspection, appear to be in a reasonably safe condition. Bowers v. Connecticut River Railroad, 162 Mass. 312, 38 N.E. 508; Thyng v. Fitchburg Railroad, 156 Mass. 13, 16, 30 N.E. 169, 32 Am. St. Rep. 425; Mackin v. Boston & Albany R. R., 135 Mass. 201, 46 Am. Rep. 456; Ballou v. Chicago, Milwaukee & St. Paul Ry., 54 Wis. 257, 11 N.W. 659, 41 Am. Rep. 31; Gutridge v. Missouri Pacific Ry., 94 Mo. 468, 7 S.W. 476, 4 Am. St. Rep. 392. But this contention does not appear to be supported by the evidence. If it may be inferred that the defendant's original reception of this car from its owner was for the purpose of transportation and delivery to a connecting line, yet the purpose of this bailment apparently had been completed and the car had been returned to the defendant. There is nothing in the bill of exceptions to indicate that it was for the purpose of completing any transportation initiated by the owner of this car that the car was delivered by the Union Freight Railroad Company to the defendant. The plaintiff's evidence, it is stated in the exceptions, tended to show that the defendant at the time of the accident not only had the car in its possession and control, but was using the car in its own business. The evidence of the defendant that it had inspected the car with the same system that it used upon its own cars and upon those owned by other railroads had no tendency to control this evidence. We are of opinion that the defendant must be regarded, or at least might have been regarded, as having adopted this car as a part of its own equipment and one of its instrumentalities. But if this is so, its duty to strangers could not be discharged by merely establishing an adequate system of inspection and providing a sufficient number of competent inspectors. It would be subject to the same liability as if it were itself the owner of the car. Beattie v. Boston Elevated Ry., 201 Mass. 3, 86 N.E. 3; Ladd v. New York, New Haven & Hartford R. R., 193 Mass. 359, 361, 362, 79 N.E. 742, 9 L. R. A. (N. S.) 874, and cases cited.
But even if the defendant could be treated as having merely received this car from a connecting line for further transportation over a continuous route, yet, as the plaintiff was not its servant, it would be responsible to him for any negligence of its inspectors. This is the doctrine of Littlejohn v. Fitchburg R. R., 148 Mass. 478, 20 N.E. 103, 2 L. R. A. 502. But there was evidence here that proper inspection would have discovered the loose and dangerous condition of this roof; and although the defendant's evidence contradicted this, the question would be one for the jury, as in Lutolf v. United Electric Light Co., 184 Mass. 53, 57, 67 N.E. 1025.
We think it plain that in this case a verdict could not have been ordered for the defendant, but that the question of liability was for the jury.
Nor can it be affirmed that there was error in what was said by the judge at the trial as to the happening of an accident like this, if unexplained, furnishing some evidence of negligence. It is the ordinary experience of mankind that the top roof of a railroad car will not blow off, even in a high wind, if it is in good condition and in a proper state of repair. But the general rule is that the mere happening of an accident, if it is one that commonly would not happen where due care was used, is some evidence of negligence, on the ground that the accident would not otherwise have happened. James v. Boston Elevated Ry., 201 Mass. 263, 87 N.E. 474; Beattie v. Boston Elevated Ry., 201 Mass. 3, 86 N.E. 920; Minihan v. Boston Elevated Ry., 197 Mass. 367, 83 N.E. 871; Hebblethwaite v. Old Colony St. Ry., 192 Mass. 295, 78 N.E. 477; Savage v. Marlbrough St. Ry., 186 Mass. 203, 71 N.E. 531; Graham v. Badger, 164 Mass. 42, 41 N.E. 61. And where, in addition to this, the instrumentality which causes the accident is shown to have been at the time under the control and management of the defendant, it well may be inferred, in the absence of explanation, that the accident was due to his negligence. Magee v. New York, New Haven & Hartford R. R., 195 Mass. 111, 80 N.E. 689; Scott v. London Dock Co., 3 H. & C. 596.
The fact that this car was the property of another company does not prevent the application of the rule stated. It was in the possession and under the control of the defendant, and used by the defendant for its own purposes. Beattie v. Boston Elev. Ry., 201 Mass. 3, 86 N.E. 920; Ladd v. N. Y., N.H. & H. R. R., 193 Mass. 359, 79 N.E. 742, 9 L. R. A. (N. S.) 874; Hale v. N. Y., N.H. & H. R. R., 190 Mass. 84, 76 N.E. 656; Foster v. N. Y., N.H. & H. R. R., 187 Mass. 21, 72 N.E. 331; Spaulding v. Flynt Granite Co., 159 Mass. 587, 34 N.E. 1134. Although it was agreed that this was a foreign car, yet it was claimed that the defendant was liable for it as for one of its own. It is not too much to say that prima facie there was a duty upon the defendant to see that the roofs of cars in its own trains should not blow off to the injury of people rightly in the neighborhood, like the duty to see to it that their trains did not come apart while in motion. Thying v. Fitchburg R. R., 156 Mass. 13, 19, 30 N.E. 169, 32 Am. St. Rep. 425. But this matter already has been sufficiently considered.
The fact that both the plaintiff and the defendant introduced evidence to show just what was the cause of the blowing off of this top roof was properly called to the attention of the jury. They were told that if the accident was explained, if they were satisfied as to its cause, then they must take all the facts and say whether or not negligence of the defendant was proved. But they rightly were told also that if they found no explanation of the accident, then it stood as unexplained, and furnished some evidence of negligence. The mere fact that either party or both parties had attempted to explain the occurrence and had failed in that attempt would not prevent the application of the doctrine of res ipsa loquitur. As was said in Cassady v. Old Colony St. Ry., 184 Mass. 156, 163, 68 N.E. 10, 13, 63 L. R. A. 285: 'An unsuccessful attempt to prove by direct evidence the precise cause does not estop the plaintiff from relying upon the presumptions applicable to it.' Sullivan v. Rowe, 194 Mass. 500, 80 N.E. 459. There is nothing in Galligan v. Old Colony St. Ry., 182 Mass. 211, 65 N.E. 48, Parsons v. Hecla Iron Works, 186 Mass. 221, 223, 224, 71 N.E. 572, and similar cases, which is at all inconsistent with this well-settled doctrine.
2. In the second action, brought to recover for the death of the plaintiff's intestate, it is not necessary to say anything more upon the defendant's exception to what was said by the court as to the...
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