Work v. Boston Elevated Ry. Co.

• Decision Date: 06 January 1911
• Citation: 207 Mass. 447,93 N.E. 693
• Parties: WORK v. BOSTON ELEVATED RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

207 Mass. 447

93 N.E. 693

WORK v. BOSTON ELEVATED RY. CO.

Supreme Judicial Court of Massachusetts, Essex.

January 6, 1911

COUNSEL

W. J. Corcoran and M. F. Cunningham, for plaintiff.

Endicott P. Saltonstall, for defendant.

OPINION

LORING J.

It is settled that jerks while running, jerks in stopping and starting to let off and take on passengers, jolts in going over frogs or switch points, and lurches in going around curves are among the usual incidents of travel in electric cars which every passenger on them must expect to encounter and that, if a passenger is injured by such a jerk, jolt or lurch the company is not liable. On the other hand an electric car can be started and stopped, for example with a jerk so much more abrupt and so much greater than is usual that the motorman can be found to be guilty of negligence and the company liable. The difference between the two cases is one of degree. The difference being one of degree and one of degree only it is of necessity a difficult matter in practice to draw the line between these two sets of cases in which opposite results are reached. No general rule can be laid down. Each case must be dealt with as it arises.

But some points are settled. It is settled that it is not enough for a plaintiff in such a case to introduce the testimony of witnesses who characterize the jerk as an unusual one or as worse than usual. Foley v. Boston & Maine R. R., 193 Mass. 332, 79 N.E. 765, 7 L. R. A. (N. S.) 1076; Sanderson v. Boston Elevated Ry., 194 Mass. 337, 80 N.E. 515; McGann v. Boston Elevated Ry., 199 Mass 446, 85 N.E. 570, 18 L. R. A. (N. S.) 506, 127 Am. St. Rep 509; Olund v. Worcester Consolidated St. Ry., 206 Mass. 544, 92 N.E. 720. The plaintiff to make out a case must go further than merely to characterize the jerk, jolt or lurch and must show (1) by direct evidence of what the motorman did that the was negligent in the way that he stopped or started the car (as in Cutts v. Boston Elev. Ry., 202 Mass. 450, 89 N.E. 21), or (2) by evidence of what took place as a physical fact (as in Lacour v. Springfield St. Ry., 200 Mass. 34, 85 N.E. 868; Black v. Boston Elev. Ry., 206 Mass. 80, 91 N.E. 891), or by evidence of what appeared to take place as a physical fact (as in Nolan v. Newton & Boston St. Ry., 206 Mass. 384, 92 N.E. 505) show indirectly that the motorman was negligent. The earlier cases are collected in McGann v. Boston Elev. Ry., 199 Mass. 446, 85 N.E. 570, 18 L. R. A. (N. S.) 506, 127 Am. St. Rep. 509. The cases which have been decided since then are Stevens v. Boston Elev. Ry., 199 Mass. 471, 85 N.E. 571; Lacour v. Springfield St. Ry., 200 Mass. 34, 85 N.E. 868; Hunt v. Boston Elev. Ry., 201 Mass. 182, 87 N.E. 489; Cutts v. Boston Elev. Ry., 202 Mass. 450, 89 N.E. 21; Tupper v. Boston Elev. Ry., 204 Mass. 151, 90 N.E. 422; Black v. Boston Elev. Ry., 206 Mass. 80, 91 N.E. 891; Nolan v. Newton & Boston St. Ry., 206 Mass. 384, 92 N.E. 505; Olund v. Worcester Consolidated St. Ry., 206 Mass. 544, 92 N.E. 720.

The plaintiff's story in the case at bar is that he told the conductor when he boarded the car in question that he wanted to get off at a real estate office, and that later on, seeing the sign of a real estate office, he 'motioned' to the conductor to stop and he nodded to the plaintiff in answer. At the time he was seated at the forward end of the car on the right-hand side. The car was a 30-foot car with seats on each side running lengthwise of the car. He then turned and gathered up some tin signs which lay on the seat beside him. He took them in his right hand and proceeded to the real door to alight. The car was then at a standstill. The conductor was on the platform and with his right hand he was helping a woman get off the car; that he had his left hand on the bell rope apparently ready to ring the bell to start the car as soon as the woman had stepped off. The plaintiff was then 8 or 10 feet from the rear door. Seeing that the conductor was looking at the woman and not at him and anticipating that the car would be started before he got to the platform he 'grabbed' a strap with his left hand, when 'the car started instantly with a tremendous jump, it shot right forward and I lost my hold on the strap and I twisted myself and I landed right right down in the corner on the opposite side from where I was standing,' 8 or 10 feet away. 'I struck on the corner of the seat right up on the left side of my head.' The plaintiff...