Woodall v. Boston Elevated Ry. Co.
| Decision Date | 20 June 1906 |
| Citation | 192 Mass. 308,78 N.E. 446 |
| Parties | WOODALL v. BOSTON ELEVATED RY. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
H. E Bolles, Olcott O. Partridge, and Henry M. Channing, for plaintiff.
Endicott P. Saltonstall and Sanford H. E. Freund, for defendant.
Something which the jury found to be a piece of metal from the operation of the contact-shoe on the defendant's elevated railway got into the plaintiff's eye while he was crossing Atlantic avenue between 1 and 2 p. m. on January 23 1902, and this is an action of tort to recover damages for the injury caused thereby. There was a verdict for the plaintiff and the case is here on exceptions by the defendant to the refusal of the court to tule that on all the evidence the plaintiff was not entitled to recover. The court submitted two questions to the jury to be answered by them if they found for the plaintiff: '(1) Did the piece of metal in the plaintiff's eye come from the operation of the brake-shoe or the contact-shoe, or neither?' to which the jury answered 'The operation of the contact-shoe,' and '(2) Was the negligence of the defendant in the failure to use a different contactshoe, or in failure to apply to the railroad commissioners for approval of the pan, or both?' to which the jury answered 'In failure to apply to the railroad commissioners for approval of pan.' Other questions not now material were submitted to them to be answered in case they found for the defendant.
The defendant does not now contend that the plaintiff was not in the exercise of due care and we therefore treat that question as no longer in issue. It is plain that in crossing Atlantic avenue as the evidence tends to show that he did, no lack of ordinary care could be imputed to the plaintiff. He was not bound to wait until there was no train passing over head, or until the train that was passing had gone along. The surface of the street was and is supposed to be safe for travel notwithstanding the structure and trains overhead.
The defendant's contentions are two: (1) That there is nothing to show that what injured the plaintiff's eye came from the contact-shoe, and (2) that there was nothing to warrant the jury in finding that the defendant was negligent in failing to apply to the railroad commissioners for approval of the pan; the still further contention being included in this last that the effect of the answer of the jury to the second question is to exclude from consideration any evidence of negligence in the selection of the contact-shoe that was used.
1. We think that there was evidence warranting the finding by the jury that the particle which entered the plaintiff's eye came from the operation of a contact-shoe. In the question to the jury it was assumed and without objection so far as appears, that the particle was a piece of metal. This assumption was justified by the evidence. The particle was described as 'about a sixteenth of inch in length and a long, narrow wedgeshaped and pointed,' with the broad end somewhat wider than the edge of a pin.' The oculist whom the plaintiff consulted testified that the pupil showed a small scar and circular brown stain which in his opinion were caused by a piece of steel or iron which he thought was rusty. On cross-examination he said that he had never seen a hot cinder leave such a stain. This evidence justified the conclusion that the particle was a piece of metal and not a cinder. The plaintiff's testimony and other testimony in the case tended to show that it came from the elevated railway and the fact that it was a piece of metal increased the probability that it did. He testified that he was going under the westerly side of the structure and heard the noise of a train passing overhead and then the particle got in his eye. He said that he thought that he had crossed the first track and was about to cross the second. Whether he meant the surface tracks or whether he meant that he had crossed under the first elevated track and was about to cross under the second is not plain and is not material. In either view it is clear that the particle go into his eye just as he was going under the elevated structure and as a train was passing overhead. And there was testimony tending to show that sparks had been frequently seen to fall in the general vicinity of the place of the accident when trains were in ordinary motion and that they sometimes fell in showers and reached the pavement. These circumstances rendered the interence that the particle came from the elevated railway a fair and reasonable one and warranted a finding to that effect. The time and place of the accident, the character of the particle, the fact that a train was passing overhead, and that sparks fell from trains in ordinary motion would lead naturally to the conclusion that the particle came from the railway. Whether it came from the brakeshoe or the contact-shoe or some other portion of the structure is more difficult to determine. The oculist called by the plaintiff testified that he thought that the scar and stain which he found in the plaintiff's eye were caused by a piece of rusty iron or steel and that while the stain might have been caused by a piece of metal hot enough to produce charred tissue, he found no charred tissue; which would tend to show that the particle came from some other portion of the structure. But the plaintiff testified that the oculist who examined his eye on behalf of the defendant and who was not called by the defendant told him that there was a burn on the eye, which would tend to show that the particle came from the brake-shoe or the contact-shoe from both of which heated particles were thrown off though those from the contact-shoe were hotter than those from the brake-shoe and would therefore be more liable to cause a burn and scar than those from the brake-shoe. The direction in which the train was going was also important. There was evidence that it was going north, and if so, owing to the positions of the stations, there would have been no occasion to apply the brakes. The plaintiff could not tell which way it was going. But a companion who was with him testified it was going north; and though not willing to swear absolutely to it said that there was no doubt in his mind that it was going north. If the jury believed that the train was going north, then it would seem almost to follow that the particle could not have come from the brake-shoe. Moreover there was testimony tending to show that although there had been a good deal of trouble from the sparking of the contact-shoes, there had been no difficulty and no accidents to people underneath by reason of the brake-shoe sparks. Taking all of the circumstances into account it was competent for the jury to find, and the evidence fairly warranted them in finding that the particle came from the contact-shoe. The strength and direction of the wind, the exact position of the plaintiff, and the inferences and conclusions to be drawn from these and the other facts in evidence were all for the jury. The plaintiff was not bound to exclude the possibility that the accident might have happened in some other way, but only to satisfy the jury by a fair preponderance of the evidence that it occurred in the manner in which he contended that it did. In McNeil v. Boston Elevated Railway, 187 Mass. 569, 73 N.E. 657, and Wadsworth v. Boston Elevated Railway Co., 182 Mass. 572, 66 N.E. 421, relied on by the defendant, there was nothing to remove the cause of the accident from the domain of conjecture. In this case though no one saw where the particle came from, the combination of circumstances was such as to warrant a finding, as already observed, that it came from the contact-shoe.
2. The defendant further contends, and this is its principal defense, that the evidence did not warrant a finding that there was any negligence on its part in failing to apply to the railroad commissioners. If this defense fails then it still further contends that there is nothing to show that the sparking could have been prevented by the exercise of ordinary care and diligence,...
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