O'neil v. Lynn & B.R. Co.
| Decision Date | 28 February 1902 |
| Citation | 62 N.E. 983,180 Mass. 576 |
| Parties | O'NEIL v. LYNN & B. R. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
M. J. Creed and J. Porter Crosby, for plaintiff.
Henry F. Hurlburt and Damon E. Hall, for defendant.
In this case the plaintiff was injured by the starting of an electric car while she was in the act of alighting from it. The car in question was an open one, and had stopped for her to get off. She had been sitting on the fifth or sixth seat from the front, and had one foot on the running board and one foot on the ground, when two bells were rung, and the car started. Immediately on the two bells being rung, one bell was rung and the car was immediately brought to a stop. The car did not move more than a foot. The only act of negligence stated by the plaintiff in her declaration is 'that while she was alighting from said car the defendant, by its servants and agents, negligently and carelessly caused said car to start up, and plaintiff was thereby thrown violently to the ground.' The issue raised by the pleadings was called to the attention of the presiding judge by the defendant corporation, and the point was taken that under the declaration the plaintiff could recover for that act and for no other. We are of opinion that there was no evidence on which the jury were warranted in finding that the car was started by the defendant's servants or agents, or by their direction and authority. Although the plaintiff, on her direct examination, testified that the conductor rang the two bells on which the car started up, yet on cross-examination she admitted that she could not say that she saw the conductor do anything to start the car; that all she knew about it was that the car started; and neither of the two witnesses who were called by the plaintiff saw who rang the bell. From the testimony of one of these witnesses the jury could have found that when the plaintiff fell the conductor got off the back part of the car on the same side on which the plaintiff was when she fell, and ran around to the plaintiff. The other witness added nothing on this point. In addition, the plaintiff testified that she asked the conductor how he came to start the car, and he made no reply and further it appeared that in his report of the accident to the defendant corporation he did not fill in the blank opposite the question, 'Whose fault?' The defendant introduced evidence...
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