Rust v. Springfield St. Ry. Co.

• Decision Date: 27 February 1914
• Citation: 217 Mass. 116,104 N.E. 367
• Parties: RUST v. SPRINGFIELD ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

217 Mass. 116

104 N.E. 367

RUST v. SPRINGFIELD ST. RY. CO.

Supreme Judicial Court of Massachusetts, Middlesex.

February 27, 1914

COUNSEL

Francis

R. Mullin, of Boston, and Paul F. Spain, of Cambridge, for plaintiff.

Henry W. Ely and Jos. B. Ely, both of Springfield, for defendant.

OPINION

CROSBY J.

The plaintiff, a woman 31 years of age, boarded a car of the defendant on Main street in Springfield.It was a short open car, about 35 feet long.She sat near the center of a seat in the middle of the car, and was intending to alight at the corner of Willow and State streets.The car passed down Main street and turned easterly up State street the latter having an ascending grade from Main street.Willow street, where the plaintiff desired to alight, leads off State street, on the right as the car proceeds up the hill and is the second street before coming to Maple street, which also leads off State street on the right.

The plaintiff testified on her direct examination that she tried to attract the conductor's attention, but did not succeed in time; that he was standing on the front end of the car that as the car came to Dwight street, which leads off State street on the left at a point between Willow and Maple streets, she called to the conductor 'about three times, and then he looked towards her'; that the car was slowing up and he'said something to the motorman'; that she 'moved from the center of the seat along to the end waiting for the car to stop, 'as I would get off when it stood still, but there was a sudden terrible jerk, and I was thrown forward, and I grabbed the upright of the car, to save myself, with my left hand, and one foot went down on the running board and the other one remained on the floor of the car; and it seemed just a second before the car started forward again; and in the position I was in, I could see the motorman with the brake reversing * * * and I was thrown right out on the street at the curved sidewalk, almost at the curbing.”She further testified that she could not say whether the conductor rang any bell at the time she succeeded in attracting his attention, and that just before the jerk occurred the car was running slowly and was not going faster than one would walk.

On cross-examination she testified that she had a bag and a raincoat in her right hand; that after she had moved over to the end of the seat she had her left hand on the back of the seat in front; that she was sitting down with her feet firmly on the floor; that she was in that position for two or three seconds before the jolt came; and that she tried to save herself and grabbed the stanchion and held on until she was thrown to the ground immediately thereafter.The evidence showed that the distance from the nearest car rail to the curbing on the southerly side of State street is 15 feet.If the accident happened as testified to by the plaintiff, and as the jury had a right to find, it could not be ruled that she was not in the exercise of due care.Her conduct was therefore a question for the jury under proper instructions.

The question whether the motorman was negligent in his management of the car in our opinion was also for the jury.It has been uniformly held that a street railway company is not liable for injuries to passengers occasioned by the ordinary jerks, jolts or lurches of cars in starting or stopping, or in running over switches or around curves because they are the usual incidents of travel in the careful operation of cars.Although the motion of a car may be characterized by witnesses as unusual, or, as was testified to by the plaintiff, there was 'a sudden, terrible jerk,' yet it is not sufficient in the absence of other evidence to warrant a finding of negligence.Foley v. Boston & Maine R. R.,193 Mass. 332, 79 N.E. 765, 7 L. R. A. (N. S.) 1076;McGann v. Boston Elev. Ry.,199 Mass. 446, 85 N.E. 570, 18 L. R. A. (N. S.) 506, 127 Am. St. Rep. 509;Flanagan v. Boston Elev. Ry.,103 N.E. 905.If,...