Reardon v. Boston Elevated Ry. Co.

• Decision Date: 14 December 1923
• Citation: 247 Mass. 124,141 N.E. 857
• Parties: REARDON et al. v. BOSTON ELEVATED RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

247 Mass. 124

141 N.E. 857

REARDON et al.

v.BOSTON ELEVATED RY. CO.

Supreme Judicial Court of Massachusetts, Middlesex.

Dec. 14, 1923.

Exceptions from Superior Court, Middlesex County; Franklin T. Hammond, Judge.

Action of tort by Dennis J. Reardon and others against the Boston Elevated Railway Company to recover damages sustained by plaintiffs from a collision of one of the defendant's street cars with the plaintiffs' hack and horses. Plaintiffs, being aggrieved by a ruling of the court and instructions, bring exceptions. Exceptions overruled.

1. Street railroads k112(2)-Doctrine of resipsa loquitur held inapplicable.

Where there was evidence to show that defendant's trolley car ran into plaintiff's hack as it proceeded in front of the car, and other evidence that the hack was driven suddenly on the tracks so near to the moving car that it was impossible to avoid the collision, the doctrine of res ipsa loquitur had no application.

2. Street railroads k117(11)-Motorman's negligence held for jury.

Where there was evidence that a trolley car ran into a hack as it was proceeding in front of the car, and other testimony that the hack was driven suddenly on the tracks so near the moving car that it was impossible to avoid the collision, it was for the jury to determine whether plaintiff sustained the burden of proof of negligence.

3. Street railroads k113(4)-Evidence as to length of employment of motorman inadmissible.

In an action against street railway for damages in collision between trolley car and plaintiff's hack, court properly excluded evidence as to length of time motorman had been in the employment of the defendant.

W. H. Lewis, of Boston, for plaintiffs.

A. E. Pinanski and R. L. Mapplebeck, both of Boston, for defendant.

RUGG, C. J.

[1] This is an action to recover property damages arising from a collision on a public way between a hack and horses belonging to the plaintiff and a trolley car operated by the defendant upon its tracks. There was evidence tending to show that the trolley car ran into the hack as it was proceeding along its steady and undeviating course in front of the car. There was other evidence tending to show that the hack was driven suddenly from the left side of the street upon the tracks so near to the front of the moving car that it was impossible for the motorman to avoid the collision. On this state of the evidence the jury were instructed fully as to the due care of the servant of the plaintiff in charge of its property and the negligence of the motorman of the defendant, and further that the doctrine of res ipsa loquitur had no application. In this there was no error. The mere occurrence of the collision on the highway was no evidence of the negligence of the defendant. This is the rule of our own cases. Niland v. Boston Elevated Railway, 213 Mass. 522, 100 N. E. 554;Singer Sewing Machine Co. v. Springfield Street Railway, 216 Mass. 138, 103 N. E. 283;Williams v. Holbrook, 216 Mass. 239, 103 N. E. 633;Timms v. Old Colony Street Railway, 183 Mass. 193, 66 N. E. 797;Stangy v. Boston Elevated Railway, 220 Mass. 414, 107 N. E. 933;McNiff v. Boston Elevated Railway, 234 Mass. 252, 125 N. E. 391;Parsons v. Boston Elevated Railway, 236 Mass. 415, 128 N. E. 712;Sandler v. Boston Elevated Railway, 238 Mass. 148, 130 N. E. 104;Kinnarney v. Milford & Uxbridge Street Railway, 241 Mass. 127, 130, 134 N. E. 614;Baglio v. Director General of Railroads, 243 Mass. 203, 207, 137 N. E. 257;Rizzitelli v. Vestine (Mass.) 141 N. E. 110, and cases there collected.

As was said in Wing v. London General Omnibus Co., C. A. [1909] 2 K. B. 652, 663, 664:

‘The mere...