Sheehan v. Boston Elevated Ry. Co.
| Decision Date | 24 February 1915 |
| Citation | 107 N.E. 923,220 Mass. 210 |
| Parties | SHEEHAN v. BOSTON ELEVATED RY. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John J. O'Hare and Wm. Harold Hitchcock, both of Boston, for plaintiff.
E. P Saltonstall and Stanley G. Barker, both of Boston, for defendant.
DE COURCY, J.
The plaintiff's intestate, Patrick McGann, was in the employ of the defendant company as conductor on a car running through the East Boston tunnel. At the Boston terminus there is a single track, called a 'dead end.' On the morning of the accident his car was the last of three to come in to this terminus, and necessarily would be the first to go out; and it was the duty of the motorman and conductor to change ends for the return trip. While McGann was adjusting the fender on the rear end of his car as reversed, the car behind him moved ahead and crushed him against his own car. At the trial the plaintiff waived all counts under the Employers' Liability Act and relied on the common-law counts for conscious suffering. The negligence declared on was the alleged failure of the defendant to furnish and keep in repair safe and suitable appliances or mechanism for stopping and holding the car which ran into the intestate. A verdict for the defendant was ordered in the superior court.
The plaintiff asks us to extend to this case the rule applied in Chiuccariello v. Campbell, 210 Mass. 532, 96 N.E 1101, 44 L. R. A. (N. S.) 1050, Ann. Cas. 1912D, 510, to wit that from the unexplained starting of a machine in a factory under circumstances when it ought not to have started at all, the jury could infer not only that there was a defect of some kind in the machine, but that it was due to negligence on the part of the employer. Even if this question arose now for the first time, we should hesitate to say that an electric car, operated on the highways in all kinds of weather, with frequent changes in the persons handling its mechanism, and driven by a force not yet fully understood, is in the same class with a machine in a factory, under the immediate control and constant supervision of the employer. In substance the plaintiff's contention is that a jury might find that an electric car 'does not ordinarily start automatically without some negligence of omission or commission on the part of the employer, and that the existence of such negligence is the rational explanation of the starting.' Ryan v. Fall River Iron Works Co., 200 Mass. 188, 193, 86 N.E. 310, 312. But this question is no longer an open one. It has been held by this court in several cases similar to the one at bar that the mere unexplained starting of a car is not of itself sufficient to show negligence on the part of the employer. Kenneson v. West End St. Ry., 168 Mass. 1, 46 N.E. 114; Curtin v. Boston Elev. Ry., 194 Mass. 260, 80 N.E. 522; Horne v. Boston Elev. Ry., 206 Mass. 231, 92 N.E. 223; Ridge v. Boston Elev. Ry., 213 Mass. 460, 100 N.E....
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