Plummer v. Boston Elevated Ry. Co.
| Decision Date | 21 May 1908 |
| Citation | 84 N.E. 849,198 Mass. 499 |
| Parties | PLUMMER v. BOSTON ELEVATED RY. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
S. A. Fuller, Linville H. Wardwell, and Wardwell & Monahan, for plaintiff.
Russell A. Sears, John T. Hughes, and William J. Holbrook, for defendant.
1. The question of due care on the part of the plaintiff is a close one. The place of the accident was well lighted. The estimates of horizontal distances between the side door of the car and the edge of the permanent platform varied from 14 to 20 inches, and the maximum possible distance including a lurch of the car was 21 inches. The claim of the plaintiff (which the jury, in view of other instructions given, must have found to be correct) was that, when the sliding platform was projected out against the car, the space in front of about one-half the width of the door, or 20 inches, was not bridged. It was estimated that there were eight or ten other passengers trying to board the car at this place. She testified that she heard the guard say 'Step lively,' there was no one directly in front of her, but people were in front of and close beside her so that she could not see the open space, and in order to have observed it, she would have beed obliged to stop, and thus obstruct the way of others behind her. That other passengers were passing safely into the car, in the same way, and at so nearly the same place, as the plaintiff attempted to do, and that as to one-half the door the step of the entering passenger need to cover only 4 to 6 inches, while as to the other half, the step required was from 14 to 21 inches, in conjunction with the hurry call of the guard and the hour of the day, were circumstances, which with all the other attendant conditions, made the plaintiff's due care a question for the jury. Hilborn v. Boston Elevated Ry Co., 191 Mass. 14, 77 N.E. 646, is distinguishable on the ground that the only structures there in question were the permanent platform, constructed according to plans of the subway commission, and the car, and the distance was the same throught the width of the car step. Here by act of the defendant the distance between the car and the platform was from two to three times as wide on one part of the car door as on the other, and this circumstance together with the appearance of safe walking over the space by those near her may have been found to have relieved the plaintiff of the obligation of such close scrutiny as she would otherwise be held to exercise, and which might have revealed the danger. These circumstances also distinguishes this branch of the present case from Willworth v. Boston Elevated Ry Co., 188 Mass. 220, 74 N.E. 333. Prayers 3, 5 and 10 relate to the plaintiff's due care. The first of these was properly refused. The standard in a case like the present is not whether the 'plaintiff by looking could have seen the hole * * * and did not look,' but whether it was reasonable conduct for ordinarily prudent people under the circumstances disclosed to so look as to discover the danger. The second of these prayers was an accurate statement of the law, but it was in substance given by saying that 'if the plaintiff knew or in the exercise of reasonable care ought to have known that there was a space * * * into which she might step, then it was her duty to have avoided the place. * * *' The same is true of the last of these requests. The defendant in the operation of its trains and the management of its platforms had a right to assume that the plaintiff would take reasonable heed as to her steps in boarding the car, and this the jury were told in substance in the charge.
2. There was sufficient evidence to warrant the submission of the question of the defendant's negligence to the jury. If there had been no movable platform installed by the defendant, it is clear that there would have been no evidence of its negligence under the decisions of this court before cited. It is true that the defendant, so far as disclosed by the evidence had installed movable platforms solely for the purpose of narrowing the space necessarily existing between the permanent platform and the car door, where the tracks are upon sharp curves and thus protecting the traveling public against their own want of care. These platforms were much wider than the car door, but there was evidence tending to show that once a day the average motorman, and less frequently the most cautious, would not be able to stop the train, so that the entire width of the car door would be adjacent to the protected edge of the movable platform. But it was open to argument that notwithstanding this evidence, the running of the car on this occasion may have been due to inattention and other carelessness on the part of the motorman, or that it was negligent not to run the train a little further before opening the door so that it would be opposite the platform. There was evidence also that this device was the best known for the purpose, and that no contrivance to serve the same purpose was in use elsewhere. Nevertheless, the defendant knew, or ought to have known, of the possibility that the platform would not always cover the width of the door. It may have been regarded as negligence to have opened the side door of the car before the train was so adjusted to the platform that there would be no open space. Its brakeman, in charge of the platform, testified that he had been instructed not to pull it out, when there would be such space left. It may also have been found that, having pulled it out under conditions, which constituted a disobedience of orders, he should have taken a position so as to prevent passengers from crossing the unprotected and uncovered space or to warn them of the danger. This was evidence of negligence to be weighed by the jury. For this reason the ruling requested, that it was not negligence to omit to warn passengers of the existence of the space, was properly refused. The charge of the court that it was for the jury to say, whether it was negligent for the defendant not to have some one at the place to give warning, and as to action of the brakemen, was ample and correct. The precise condition existing was one created by the defendant, and might have been found, in the respect of leaving one-half the car door bridged by the sliding platform and the other half unbridged, more dangerous than if no attempt whatever had been made to span the space and, by reason of this special danger, to impose an obligation upon the defendant, which would not otherwise have rested upon it. The jury were instructed in substance that for the construction of the permanent platform and the space existing between it and the cars, the defendant was not responsible. This disposes also of the defendant's last prayer.
3. The defendant called an expert engineer, who testified at length respecting the experiments made by the defendant as to the movable platform in connection with moving and loaded trains, and that it was the best and only device of the sort in use anywhere. He was then asked on cross-examination: Upon objection being made, the court ruled that the witness should answer 'with all the information he has now whether it would not have been proper to put that in.' This ruling is not clear in its meaning. If it was intended that the witness should answer in the light of his present knowledge as to whether it was practicable at the time of the accident to have had better appliances, it was correct. But if it meant that in view of experiments made, experience gained, inventions or devices discovered, since the accident, it was in his opinion practicable at the time of the trial to put in something better, then it was plainly wrong. The liability of the defendant was to be determined upon the footing of what might reasonably be required of it in the light of knowledge then existing, not that required afterwards. Whelton v. West End St. Ry. Co., 172 Mass. 555, 52 N.E. 1072. Stevens v. Boston Elev. Ry. Co., 184 Mass. 476, 69 N.E. 338. But however the ruling may have been understood, the answer was stated by the witness to be based upon knowledge possessed at the time of the accident, so the defendant was not harmed. The witness was cross-examined without further objection at some length, and then plaintiff's counsel contended in his final argument that the witness knew of some better device and would not disclose it. No interruption of the argument was made by opposing counsel in order to save an exception; nor was any request made for a ruling based upon the argument ( Com. v. Coughlin, 182 Mass. 558, 66 N.E. 207; Sayles v. Quinn, 196 Mass. 492, 82 N.E. 713), and therefore no exception is open to the defendant upon this ground.
4. The sixth request was that there was no evidence of any negligence of the defendant in the construction of the platform. This was in substance given. The issue between the parties was stated early in the charge to be whether the side of the movable platform was or was not substantially two feet from the door, and the jury were then told that if they should find that the movable platform came to the edge of the door, so that the entire space between the door and the permanent platform was covered, their verdict must be for the defendant. Later they were told that there was no defect in the...
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