Romana v. Boston Elevated Ry. Co.

• Decision Date: 23 May 1917
• Parties: ROMANA v. BOSTON ELEVATED RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

226 Mass. 532

116 N.E. 218

ROMANA

v.BOSTON ELEVATED RY. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 23, 1917.

Exceptions from Superior Court, Suffolk County; Wm. F. Dana, Judge.

Action by Josephine Romana, by her next friend, against the Boston Elevated Railway Company. On defendant's exceptions to judgment for plaintiff. Exceptions overruled.Frederick J. Daggett and James T. Cassidy, both of Boston (Philip Mansfield, of Boston, of counsel), for plaintiff.

W. G. Thompson and Geo. E. Mears, both of Boston, for defendant.

LORING, J.

The exceptions now before us were taken at the new trial consequent upon the decision in Romana v. Boston Elevated Ry., 218 Mass. 76, 105 N. E. 598, L. R. A. 1915A, 510, Ann. Cas. 1917A, 893.

The course of the second trial differed from that pursued at the former trial in more ways than one. At the second trial the plaintiff put her case on the footing that she was a trespasser and she undertook to charge the defendant with liability not on the ground that Sullivan was in charge of the car barn but on the ground that it was his duty to report the leakage of electricity to his superior officer.

With these changes the case presented at the second trial was in substance this: The plaintiff received an electric shock from a heap of hay wire or wires of that nature while she was going toward the flats which lay back of the defendant's car barn along a path just outside of the fence surrounding the defendant's yard. This heap of wire lay in close proximity to or was attached to an iron pole or post belonging to the defendant; attached to this iron pole or post was a wire connected with the wires which carried the electric current used by the defendant in furnishing its cars with power. Through a defect in insulation the defendant's electric current had been carried to this iron pole or post. In this way this iron pole or post had been charged with electricity and the electricity with which the pole or post had been charged had escaped into the hay wire; the electricity with which the hay wire had been thus charged had given the plaintiff the shock of which she complained in this action. At the trial no question was made: (1) as to the plaintiff having suffered an electric shock; (2) as to the iron pole or post having been charged with the defendant's electricity; and (3) as to the pole having been charged with electricity by reason of defective insulation in the defendant's wires. The defendant's main contention was that one of the hay wires had been attached to the pole or post in question by a third person and that the hay wires had become charged with the leaking electricity in this way. If these were the facts of the case the defendant was not liable. The plaintiff's contention was that the electricity with which the pole had thus become charged found its way to the wire through water on the earth or through earth which was wet. And there was evidence that it might have been conveyed to the heap of wire in either of these two ways.

The exceptions taken by the defendant are very numerous and many of them have been waived. In discussing them we follow the defendant's brief.

[226 Mass. 536]1. The declaration contained two counts. The first count was for ordinary negligence; the second count was for ‘wilful, wanton and reckless negligence of the defendant company, its agents or servants.’ On the second day of the trial the presiding judge directed the jury to find a verdict for the defendant on the first count and to this counsel for the plaintiff consented. The defendant then contended that the verdict in its favor upon the first count entitled it as matter of law to a verdict in its favor on the second count. In support of this contention it has relied upon the case of Cotter v. Boston & Northern St. Ry., 190 Mass. 302, 76 N. E. 910. Nothing can be found in that case to support this contention. That case was decided upon the doctrine of res adjudicata. In that case before bringing the action then before the court the plaintiff had brought an earlier action against the same defendant. In the earlier action he had declared on ordinary negligence; in the later action (before the court in 190 Mass. 302, 76 N. E. 910) he counted on wilful negligence and wanton and reckless conduct on the part of the defendant, its agents and servants. It was held by this court that the former judgment was ‘a bar not only on all the issues actually tried, but on all which might have been tried in it’ on the authority (inter alia) of Foye v. Patch, 132 Mass. 105, and Clare v. N. Y. & N. E. R. R., 172 Mass. 211, 51 N. E. 1083. Foye v. Patch is authority for the proposition that a former action is a bar not only on the issue tried but on all the issues which might have been tried and Clare v. N. Y. & N. E. R. R. is authority for the proposition that in such a case as that then before the court (and in a case like Cotter v. Boston & Northern St. Ry.) there is but one cause of action and that one cause of action cannot be split so as to be the foundation of two actions of tort. The reasons were fully set forth in Foye v. Patch and in Clare v. N. Y. & N. E. R. R., and by reason of that were not repeated in Cotter v. Boston & Northern St. Ry.

In the case at bar there is no question of res adjudicata. In the case at bar the plaintiff undertook to recover in the first count for ordinary negligence and in the second count for ‘wilful, wanton and reckless negligence.’ A verdict for the defendant on the first count (of one and the same declaration) in no way precluded the plaintiff from making out a case of wilful, wanton and reckless negligence (as alleged in the second count) if in fact she could do so.

2. The defendant's next contention (as we understand it) is that by virtue of an agreement which was made when the judge directed the verdict for the defendant on the first count the plaintiff was precluded from maintaining the action unless she proved that some one for whom the defendant was responsible had actually intended to injure the plaintiff. Confessedly there was no evidence that any one for whom the defendant was responsible had actually intended to injure the plaintiff. On this ground the defendant contended that it was entitled as matter of law to a verdict on the second count in the case at bar. There is nothing in that contention. The whole colloquy out of which this supposed agreement arose was as follows: At the time in question counsel for the defendant said:

‘I am perfectly willing to concede that that verdict [the verdict directed on the first count] shall have no bearing on the question of the plaintiff's due care, but only on the nature of the defendant's fault. That is, I don't think it would be fair for me to claim anything about the plaintiff's due care. I understand that only adjudicates the nature of the defendant's fault. Is that agreeable?’

To this counsel for the plaintiff assented. There is nothing in this which means that after the verdict had been entered for the defendant on the first count the plaintiff to succeed must make out that some one for whom the defendant was responsible had actually intended to injure the plaintiff.

3. On the evidence in the case the presiding judge told the jury that to find for the plaintiff they must find in addition to the conceded facts of the case: (1) that before the accident one William Sullivan who was a car shifter in the defendant's car barn (here in question) had been told that the defendant's iron post had become charged with electricity; (2) that he knew that people would be likely to be in the vicinity of the post; (3) that he knew that wire or similar objects had been dumped and were on the bank close to the post; (4) that he knew that people in the vicinity of the post would be likely to suffer grievous bodily injury by reason of the leaking electricity which had been stored in it; (5) that it was his duty to report that condition to his superior officer; (6) and finally that failing to report it to his superior officer the jury found that he had been guilty of reckless or wanton conduct or negligence. The evidence warranted findings in favor of the plaintiff upon the first five of these facts. Defendant's counsel has contended that even if these five findings are made a finding could not be made that Sullivan was guilty of reckless or wanton conduct or negligence. In support of this contention he has argued that the plaintiff elected to go on the ground that she was a trespasser and that no matter what the facts are a land owner as matter of law is not bound to anticipate the presence of trespassers. In that connection he relies on Khinoveck v. B. & M. R. R., 210 Mass. 170, 96 N. E. 52. There is nothing in that case which gives support to this contention. In that case at the time of the accident the plaintiff was on one of the tracks in the defendant's freight yard and not in a place continually resorted to by the public although without permission of the defendant. In the case at bar on the contrary there was evidence ‘that for a long time prior to the accident children and other persons living in the vicinity of the defendant's car barn had, without the defendant's permission, but with the knowledge of the Division Superintendent Barnes and of some other persons employed in and about the car barn and yard’ used the path used by the plaintiff at the time here in question. This coupled with evidence of Sullivan's having been continually about the...