Beattie v. Boston Elevated Railway Co.

201 Mass. 3 | Mass. | 1909

Knowlton, C. J.

There was evidence to warrant a finding that the female plaintiff was in the exercise of due care. According to the testimony, the explosion on the electric car was terrific. The controller in the front end of the car exploded, blowing a hole in its metallic covering, emitting a flame which lighted up the whole car. According to one witness “ The flame appeared to leap up to the roof and envelop the whole car. The whole car appeared to be ablaze.” Of the large number of passengers on the car all but one who was detained there rapidly left the car. The fact that the plaintiff could not describe her action in leaving it does not show that she was not in the exercise of due care. Under such circumstances she could not be expected to act with deliberation.

The question principally argued by the defendant’s counsel arises upon the refusal of the judge to grant the defendant’s sixth request for a ruling, namely: “ The doctrine of res ipso loquitur does not apply to this case,” and upon the instruction given, “ that the mere happening of the explosion was some evidence of negligence on the part of the defendant as to matters alleged in the fourth count of the plaintiff’s declaration.”

The doctrine res ipso loquitur applies in the case of an unexplained accident which, in the ordinary experience of mankind, would not have happened without fault on the part of the defendant. Minihan v. Boston Elevated Railway, 197 Mass. 367. Pinney v. Hall, 156 Mass. 225. Cassady v. Old Colony Street Railway, 184 Mass. 156. An accident such as appears in this case, with nothing to show that it might have been expected to happen if proper care was used by the defendant, is peculiarly a case for the application of the doctrine.

The defendant’s principal argument is that, while the doctrine may apply so far as to be evidence of negligence of some kind on the part of the defendant or its servants, it has no tendency to show that the negligence was in regard to the condition of the car. It may be conceded that if a plaintiff counts upon a particular kind of negligence of a defendant, and no other, an accident that might have happened, with equal probability, from negligence of that kind, or from negligence of" a very different kind, does not alone support the averments of the count. But in this case there was testimony from an expert witness, excluding, in his opinion, the possibility of such an accident from any other cause than a defect in the condition of the electrical mechanism and equipment of the car, and we are not aware of any fact or evidence to warrant a finding that such an accident could have happened from any other cause. The instruction was given in connection with the refusal of an instruction requested, that “the plaintiff has shown no facts from which negligence on the part of the defendant can be reasonably inferred as to matters alleged in any count of plaintiff’s declaration,” and it was intended to be considered in connection with the uncontradicted testimony of the expert witness. The case comes within the doctrine stated in Cassady v. Old Colony Railway, 184 Mass. 156, and Gilmore v. Milford Uxbridge Street Railway, 193 Mass. 44.

The testimony of the expert and the other circumstances of the case would warrant a finding of negligence, notwithstanding that the car was not owned by the defendant, but was received from another corporation. The defendant was a common carrier of passengers, and it was its duty to exercise towards the plaintiff the highest degree of care consistent with the proper management of its business.

Exceptions overruled.