Partelow v. Newton & B. St. Ry. Co.

• Decision Date: 18 June 1907
• Citation: 81 N.E. 894,196 Mass. 24
• Parties: PARTELOW v. NEWTON & B. ST. RY. CO. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

196 Mass. 24

81 N.E. 894

PARTELOW v. NEWTON & B. ST. RY. CO. (two cases).

Supreme Judicial Court of Massachusetts, Middlesex.

June 18, 1907

These are two actions of tort--the first for damages resulting from personal injuries alleged to have been sustained by the first-named plaintiff by being thrown from a car of the defendant on which she was a passenger; and the second by her father for expenses, loss of services, etc. The court refused the following instruction requested by defendant:

'There being no evidence of any defect in the car or track, the plaintiff must show, in order to recover, that the car struck the curve at a dangerous and negligent rate of speed. It is not sufficient to show merely that the car was going at such speed as to make it probable that there would be a lurch or jolt, for it is fairly incidental to street car travel that cars should occasionally lurch and jolt and passengers must be held to contemplate such occurrences. Neither is it sufficient to show that there was in fact an unusual or violent lurch of the car, or one sufficient to throw the plaintiff off. It must appear by other evidence that the speed was so unusual under the circumstances that the defendant's servants ought to have realized before the accident occurred that the car was likely to lurch more violently and dangerously than is incident to the ordinary operation of cars upon curves in the track.'

COUNSEL

James J. McCarthy, for plaintiffs.

Powers & Hall, for defendant.

OPINION

SHELDON J.

A verdict could not have been ordered for the defendant in these cases, and the defendant's first request was rightly refused.

There was evidence on which the jury could find that the female plaintiff, hereinafter called the 'plaintiff,' was in the exercise of due care. She was sitting in one of the seats designed for passengers, and there was nothing to indicate that she had reason to apprehend any special danger by reason of her position on the left-hand end of the front seat. She testified that immediately before the accident, when she became apprehensive by reason of the speed of the car, she endeavored to save herself from possible injury by bracing herself in her seat and grasping the seat and the brass rod at the corner with her hands. This question was plainly for the jury. Indeed, the defendant has not argued to the contrary.

There was also evidence that the car was run at an excessive rate of speed over a somewhat sharp curve on a downgrade, and that this caused an unusually severe jolt or lurch of the car, which threw the plaintiff off and caused the injury complained of. It is true that there was much evidence that the car was running only very slowly, and that there was no unusual or extraordinary lurch or jolt, and it may be that this was the weight of the evidence; but the question was for the jury. Spooner v. Old Colony Street Railway, 190 Mass. 132, 76 N.E. 660.

Nor ought the defendant's seventh request to have been given. The criterion of the negligence of the defendant's servants was not whether they ought to have realized before the accident occurred that the car was likely to lurch more violently and dangerously than was incident to an ordinary operation of cars upon curves in the track, but whether they were running the car at a rate of speed which under the circumstances and at that place involved unnecessary dangers. Moreover, there was evidence that a rule of the defendant limited the rate of speed at a place like the one in question to three miles an hour. If this was so, and if the jury found that this rule was violated, that would be a circumstance to be considered in passing upon the negligence of the defendant's servants. Stevens v. Boston Elevated Railway, 184 Mass. 476, 69 N.E. 338. But this consideration was wholly omitted from the request.

The defendant rightly contends that it is a matter of common knowledge that from inequalities of surface and necessary curves, switches and guard rails, street cars in their ordinary and proper operation frequently and unavoidably lurch or jolt, and that such occurrences must be considered to be 'fairly incidental to the mode of travel, and must be held to have been contemplated by the passenger.' Spooner v. Old Colony Street Railway, 190 Mass. 132, 134, 76 N.E. 660, and cases there cited. The same rule has been applied to steam railroads. Foley v. Boston & Maine Railroad (Mass.) 79 N.E. 7; Weinschenk v. New York, New Haven & Hartford Railroad, 190 Mass. 250, 76 N.E. 662. Nor, as pointed out in the two cases last cited, is it enough to use strong or violent language in describing the jolt. To furnish ground for an action against the company, it must appear that the lurch or jolt was more than is ordinarily to be expected, and that it was due to a defect in the car or track, a negligent or dangerous rate of speed, or some other cause for which the defendant can be held responsible. Sanderson v. Boston Elevated Railway (Suffolk, Feb. 28, 1907) 80 N.E. 515; Timms v. Old Colony Street Railway, 183 Mass. 193, 66 N.E. 797; Byron v. Lynn & Boston Railroad, 177 Mass. 303, 58 N.E. 1015; McCauley v. Springfield Street Railway, 169 Mass. 301, 47 N.E. 1006. But there was in this case evidence of an unusual and extraordinary jolt, and that this was due to the running of the car at an excessive and dangerous rate of sped. The case comes under the rule of Spooner v. Old Colony Street Railway, 190 Mass. 132, 76 N.E. 660.

The defendant's exception to the comments of the judge on the witness Hart called by the defendant raises a more difficult question. The witness was the conductor of the car. He had answered the question as to how much of a swaying or lurch of the car there had been before the plaintiff fell by saying: 'Well, I should say not more than any of these single track cars would make.' No objection was made by the plaintiff to this answer; and it seems to us to have been a proper one. It was of course impossible to measure accurately the lurch of the car, or to describe it so as to enable the jury to determine its amount with exactness. It naturally would be described according to the standard of everyday experience. This is one of the many cases in which a witness may state the result of his observation, although it involves in some measure his opinion or judgment. Parker v. Boston & Hingham Steamboat Co., 109 Mass. 449, 451; Commonwealth v. Sturtivant, 117 Mass. 122, 133, 19 Am. Rep. 401; Commonwealth v. O'Brien, 134 Mass. 198, 200. The presiding judge interfered and said: 'That does not answer the question. He comes here to say that. The other man is just the same way. He is not asked that question.' The defendant excepted to this, and thereupon a colloquy ensued between the judge and the defendant's counsel, in the course of which the former said of this witness and another witness of the defendant: 'Why should he say it? Both of them have said it and you have not stopped them. * * * They shouldn't do it. It is no use to have them answer that way. Whether they came here to say that, I don't know whether that is so or not, but they shouldn't say it.' It is claimed that this, said in the presence of the jury, might well be taken by them to indicate the judge's opinion that the two witnesses referred to, both of whom had given testimony important to the defendant, were not honestly answering the questions asked them, but were attempting improperly to put into the case evidence favorable to the defendant, and had come to court for that purpose; that the jury well might regard it as an intimation that they were not credible witnesses. Our statute provides that 'the courts shall not charge juries with respect to matters of fact.' Rev. Laws, c. 173, § 80. It is settled that this forbids the judge to express in his charge to the jury any opinion as to the credibility of the witnesses who have testified before them. Commonwealth v. Barry, 9 Allen, 276; Commonwealth v. Foran, 110 Mass. 179. The defendant's contention is that an expression of such opinion stated to counsel in the course of the trial, in the presence and hearing of the jury, is likely to be as prejudicial as if embodied in the charge, and is within the spirit of the prohibition. And it is true that new trials have been not infrequently given in other states under similar circumstances. Wheeler v. Wallace, 53 Mich. 355, 19 N.W. 33; Cronkhite v. Dickerson, 51 Mich. 177, 16 N.W. 371; Lycan v. People, 107 Ill. 423; Hudson v. Hudson, 90 Ga. 581, 16 S.E. 349; State v. Allen, 100 Iowa, 7, 69 N.W. 274; State v. Stowell, 60 Iowa, 536, 15 N.W. 417; McMinn v. Whelan, 27 Cal. 300, 319. Other cases to substantially the same effect are referred to in Blashfield on Instructions to Juries, §§ 49, 50.

There is undoubtedly force in the defendant's contention; but we do not think that it can be accepted without qualification. Prior to the passage of Gen. St. 1860, c. 115 § 5, now embodied in Rev. Laws, c. 173, § 80, a judge might properly state his opinion as to the weight or effect of the whole or any part of the evidence, if only the comment was fairly made and the question was finally left to be determined by the jury. Porter v. Sullivan, 7 Gray, 441, 449; ...