Beverley v. Boston Elevated Railway Co.

194 Mass. 450 | Mass. | 1907

Loring, J.

1. The exception must be overruled to the admission of the question: “ If three cars unloaded thirty-three passengers each upon the platform between Nos. 1 and 2 would it make a fair sized crowd on that platform ? ”

An ordinary person does not know from a statement of the facts whether the unloading of three cars containing thirty-three passengers each would make a fair sized crowd on the platform in question, the dimensions of which were in evidence. That is a conclusion relating to matters which are capable of being understood by men in general and which cannot be reproduced before the jury precisely as they appeared to the witness. The evidence comes within the rule laid down in Commonwealth v. Sturtivant, 117 Mass. 122.

2. We are of opinion that the judge could allow the plaintiff-to ask James, the defendant’s inspector of surface cars on the division in question, whether the crowd on the platform of the station could be controlled by the number of incoming surface cars allowed to go into the station, by the number of persons allowed to go into the station through the turnstiles, and by the number of incoming elevated trains allowed to go into the station; and that by controlling them in these ways the size of the crowd in the station could be controlled. The issues being tried were in substance: First, was the defendant negligent in allowing the crowd to gather which did gather on the platform at the time in question ? Second, was it negligent in the means which it adopted to control it ? Third, was it negligent in the area of its platforms in connection with the length of tracks for cars to stand at one time in delivering and taking on passengers? The means which it had to prevent a crowd from gathering on the platform was a fact to be proved. The only objection made by the defendant is that every one knows the facts proved. If they do, the defendant was not injured by the admission of the evidence. If they do not, the evidence was admissible.

3. The next exception argued is the ruling of the judge that it was competent for the plaintiff to prove that at some time since the accident the defendant had extended its platform so as to cover twenty-five feet in length of the inner end of track 1. This was offered by the plaintiff to show that it was not only physically possible to increase the platform in this way, which the defendant’s counsel admitted, but that it was practically possible, having regard to the conduct of its business, which the defendant’s counsel refused to concede. The judge ruled that it was competent for the purpose for which it was offered, but not for the purpose of showing negligence on the part of the defendant at the time in question. For this purpose, under this condition of the evidence and of the contentions made by the defendant, the evidence was competent. No objection was made at the trial that the negligence alleged in the declaration did not cover this. For that reason this objection, if well taken, is not open now.

4. One of the questions on trial was whether the defendant had been negligent in providing for the safety of passengers on its platforms arising from the dangers incident to the platforms being overcrowded. To go into a consideration of the propriety on the part of the defendant’s officers of consulting the desires of the travelling public to be carried rapidly when that could be done “ without interfering with safety in the operation of the railroad” was not only not material to the issue on trial but would have tended to distract the attention of the jury from that issue. The presiding judge was right in excluding the question put to Pasho. *

5. The plaintiff had a right to go to the jury on the doctrine of Kuhlen v. Boston & Northern Street Railway, 193 Mass. 341, and also on these two further grounds: (1) That the platform in question was too small to take care of the passengers who landed on it; and (2) .that the guard (Taylor by name) who should have been on this platform was not there.

6. There was evidence that the platform was too small for the passengers who could be and were delivered on to it. The objection that this ground of negligence was not alleged in the declaration was not taken at the trial, as We have said before. The third ruling asked for was rightly refused.

7. It is hard to understand the contention of the defendant in insisting that the second part of the eighth ruling asked for by it should have been given. The jury were warranted in finding that the two crowds going in opposite directions were so great that the plaintiff was without her fault thrown off the platform on which the defendant placed her, into the pit of No. 1 track. Its contention under the eighth request for a ruling is that if this is the ordinary crowding which occurs during rush hours and the accident is due to that alone, it is not liable. But in our opinion that would make it liable. We do not see how a jury could find that the defendant company was not negligent when it continued to assemble on its platforms, at certain hours in the day, such large crowds, necessarily going in opposite directions, that those on the outside, in spite of all they can do, are carried off the platform into the trench in which the tracks are laid.

Exceptions overruled.