Weinschenck v. New York, N.H. & H.R.R.

• Decision Date: 05 January 1906
• Citation: 76 N.E. 662,190 Mass. 250
• Parties: WEINSCHENCK v. NEW YORK, N. H. & H. R. R. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

190 Mass. 250

76 N.E. 662

WEINSCHENCK

v.NEW YORK, N. H. & H. R. R. (two cases).

Supreme Judicial Court of Massachusetts, Norfolk.

Jan. 5, 1906.

Exceptions from Superior Court, Norfolk County; Loranus E. Hitchcock, Judge.

Separate actions of Sally A. Weinschenck and Carl H. Weinschenck against the New York, New Haven & Hartford Railroad. From a judgment for defendant, plaintiffs bring exceptions. Exceptions overruled.

Edward E. Elder, Albert R. Mackusick, and John G. Brackett, for plaintiffs.

Choate, Hall & Stewart, for defendant.

SHELDON, J.

These were two actions of tort brought to recover damages for personal injuries to the female plaintiff, who was the wife of the plaintiff in the second suit. At the trial the presiding judge ruled that on the pleadings and evidence the plaintiffs could not recover, and ordered a verdict for the defendant in each case; and the cases are here on the plaintiff's exceptions to that ruling. No question, however, was raised as to the pleadings.

There was evidence that on the evening of September 24, 1904, the plaintiffs took a train on the defendant's road at Atlantic, for the purpose of going to Harrison Square, where they were to change cars and take another train to Mattapan. They entered the second car of the train, and took seats at the front end of the car. The train stopped at Pope's Hill, the last station before reaching Harrison Square, and there a man in uniform, either a conductor or a brakeman, opened the car door, and it remained open without swinging until the plaintiffs left the train. As the train was approaching Harrison Square, just before it stopped and before the brakeman had called the station, the husband arose from his seat, and went out upon the platform to alight, and the wife followed behind him. Just as she stepped upon the threshold, there was an unusual jolt of the car. She felt as if she were swaying forward and going to fall, and she testified that she grabbed the first thing to protect herself, which was the jamb of the door. She stepped on the platform, and then the door closed on her fingers, causing the injuries complained of. It was a comfortably warm evening, the car was well filled, and the air in the car was very close before the door was opened. She testified that she had plenty of time to get the train which she and her husband desired to get at Mattapan, but he testified that he expected to find the connecting train already in the station, did not know how much time they had to get it, but did not think it was very much, and he intended to get out without losing any time.

On this testimony, it is at least difficult to say that the female plaintiff was in the exercise of due care. The train had not reached the station, and no call of the station had been made. Trains cannot be run without some jolts, especially in stopping; and this is a matter of common knowledge. She knew that the door was open. There was no evidence that it was fastened back, or that she believed it to be fastened back; and it is generally known that the catches of car doors are not intended to hold them...