Mullin v. Boston Elevated Ry. Co.

• Decision Date: 18 May 1904
• Citation: 70 N.E. 1021,185 Mass. 522
• Parties: MULLIN v. BOSTON ELEVATED RY. CO. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

185 Mass. 522

70 N.E. 1021

MULLIN v. BOSTON ELEVATED RY. CO. (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

May 18, 1904

COUNSEL

E. B. Callender and E. M. Shanley, for plaintiffs.

Geo. H Mellen, for defendant.

OPINION

MORTON J.

These two actions were tried and argued together. The first is an action by the female plaintiff, whom we shall speak of as the 'plaintiff,' for injuries alleged to have been sustained while a passenger on one of the defendant's open cars in July, 1900. The second is by the husband for the loss of services. The cases were tried by the court without a jury, and the court found for the defendant in each case. It was admitted that the plaintiff was in the exercise of due care. The cases are here on exceptions by the plaintiffs to certain rulings in regard to the admission of evidence, and to the refusal to adopt certain instructions that were requested.

We think that the rulings were right. The plaintiff was seated in the car so that she faced towards the rear. There had been a rain, and the tracks were somewhat wet and slippery. Another car approached on the same tracks from the rear, and 'by reason,' as the court found, 'of the moisture on the rails, notwithstanding all reasonable and proper efforts used by the motorman in applying the brakes and using the power, the car slid on the rails, and * * * the fender * * * came in contact with the fender of the car in which the plaintiff was seated.' The court further found as follows: 'The force of the impact did not cause any injury to the fender or woodwork of either car; neither were any other passengers, so far as the evidence showed, affected by such impact beyond the sensation of a jar on the part of those who were seated in the car with the plaintiff. The plaintiff, a person whose health had been somewhat impaired by previous nervous difficulties, disclosed by the evidence, seeing the car approaching, and anticipating that there would be a collision, * * * reached out her right hand, took hold of the stanchion at the end of the seat, swooned, and fell to the floor. Such fall was not caused by the impact of the cars but was the result of the fainting at the anticipated collision, the fainting fit being caused by fright.' The court also found that, as a result of the fall, she sustained certain bruises of a superficial nature, and thereafter suffered serious nervous prostration, caused by the shock and the nervous fright. In view of these findings, which were warranted by the evidence, we do not see how it can be said that there was negligence on the part of the defendant. Whether, if there was, it could be said that the plaintiff's injuries were due to it, need not be considered. See Warren v. Boston & Maine R. R., 163 Mass. 484, 40 N.E. 895; Spade v. Lynn & Boston R R., 168 Mass. 285, 47 N.E. 88, 38 L. R. A. 512, 60 Am. St. Rep. 393; Gannon v. N. Y., N.H. & H. R. R., 173 Mass. 40, 52...