296 Mass. 580 | Mass. | 1937
This is an action of tort to recover damages for personal injuries sustained by the plaintiff when she fell while crossing Concord Avenue near the intersection of Chauncey Street, in the city of Cambridge. The answer is a general denial and an allegation of contributory negligence. The bill of exceptions states that “The pleadings may be referred to and are hereby made a part hereof”; and that “The photographs introduced in evidence at the trial may be used at the hearing before the Supreme Judicial Court.”
The action was tried to a jury. At the close of the plaintiff’s case the trial judge granted a motion by the defendant for a directed verdict on all the evidence, to which, and to the exclusion of evidence offered by the plaintiff and of questions propounded in her behalf, she duly excepted. The questions of law raised by these exceptions involve the correctness of the action of the trial judge. No question of pleading was raised.
At the trial it appeared that on April 8, 1930, at about nine o’clock in the evening, the plaintiff was crossing Concord Avenue in Cambridge at a point near the intersection of Chauncey Street; that in doing so she caught her foot or toe on or against the outer rail of the outbound track of the defendant, causing her to stumble and fall; that she fell in such a way that her right elbow joint was fractured, permanently disabling her; that she suffered at the time of the trial “a severe limitation of motion of her right arm”; and that no further recovery is possible.
The issue of law involved in the present action arises solely on the plaintiff’s contention that, on the testimony received and offered at the trial, the defendant was liable to the plaintiff under St. 1923, c. 358, § 1, which reads: “During the period of public operation of the Boston Elevated Railway Company under the provisions of chapter one hundred and fifty-nine of the Special Acts of nineteen hundred and eighteen, and acts in amendment thereof and supplementary thereto, the Boston Elevated Railway Company shall keep in repair, to the satisfaction of the superintendent of streets, street commissioners, road commissioners, or surveyors of highways, or the division of highways of the department of public works, in the case of state highways, or the metropolitan district commission, in the case of metropolitan boulevards, the paving, upper planking or other surface material of the portions of streets, roads and bridges occupied by its tracks; and if such tracks occupy unpaved streets or roads, shall, in addition, so keep in repair eighteen inches on each side of the portion occupied by its tracks, and shall be liable for any loss or injury that any person may sustain by reason of the carelessness, negligence or misconduct of its agents and servants in the construction, management, and use of its tracks.” The plaintiff concedes that Concord Avenue is a paved street, and that the duty of repair of the highway by the Boston Elevated Railway Company, independent of St. 1923, c. 358, § 1, was confined to the space occupied by its tracks. Gast v. Boston Elevated Railway, 270 Mass. 330. Lenoue v. Worcester Consolidated Street Railway, 257 Mass. 285. She does not contend that the defendant was liable because of its failure to “keep in repair” the portion of the highway where the accident occurred. As above stated, she relies solely on that part of St. 1923, c. 358, § 1, which reads “. . . shall be liable for any loss or injury that any person may sustain by reason of the carelessness,
The plaintiff directs attention to St. 1871, c. 381, § 21, which is identical in its requirements of the corporation with St. 1923, c. 358, § 1. . She also directs attention to Osgood v. Lynn & Boston Railroad, 130 Mass. 492, 493, wherein this court, construing St. 1871, c. 381, § 21, said: “If a street-railway corporation, by the carelessness of its agents or servants, constructs its track so as to create a nuisance or defect in the street, the law makes it liable to any person injured by such carelessness.” The plaintiff notes that defective construction of the street railway tracks was relied on as the basis of the plaintiff’s right of action in Osgood v. Lynn & Boston Railroad, 130 Mass. 492, and that “carelessness, negligence or misconduct . . . in the construction, management, and use” of the defendant’s tracks is relied on in the case at bar, and contends that the same liability attaches to carelessness, negligence or misconduct in the management and use of tracks as attaches to the defective construction thereof, and that Osgood v. Lynn & Boston Railroad, 130 Mass. 492, declares the law applicable to the case at bar.
In support of her contention the plaintiff called as a witness one James F. Hughes, construction foreman of the city of Cambridge. He testified, in substance, that he did not observe and did not know what the condition of Concord Avenue was in April, 1930; that he could not tell whether the depressions near the street car tracks were due to any structural defect in the construction of the highway. When shown certain photographs (Exhibits 3 and 4), he stated that it was his opinion that the depressions by the rails were not due to any structural defects in the highway. It is obvious that this negative testimony did not sustain the plaintiff’s contention that there was carelessness, negligence or misconduct in the construction, management and use of the defendant’s tracks which could be found to be the cause of the defective surface of the street at the point where the plaintiff was injured.
The plaintiff then called as a witness one Thomas F.
William Allen Bryant, called as a witness by the plaintiff, testified that he was forty-five years of age, a civil engineer, and a graduate from the Massachusetts Institute of Technology in the year 1914; that he took there a course in civil engineering having to do with railroad and hydraulic engineering; that this course of study had to do with the principles of railroad construction and maintenance as well as the principles of highway construction and maintenance; that since his graduation he had practised his profession exclusively; that since 1914 he had had to do with highway and track construction, maintenance and supervision; “that he did a great deal of highway work, upon design especially, with the getting up of new subdivisions, laying out of street design, construction of streets, the designing of railroad bridges carrying the railroad traffic and the design of bridges, private railroad sidings and spur tracks; that he was the engineer for the Hood Rubber Company and handled their spur tracks as well as the design of their buildings; that aside from his technical education, going back over many years, he had known of the methods and technique of highway and street railway construction and operation; that there is no essential difference in the appearance of [track] construction between street and steam railroads; that his education at Technology involved both; that he had acted in an advisory capacity to the town engineer in Brookline and in the construction of the tracks over some of the bridges there; that he had done some of the designing of those bridges and the checking of the loads and proper sizes of the structure that was to carry the load; that as to the actual design of the street railways that is practically all done by the street railways themselves, that is 'you are
It is impossible to say whether the question was excluded because the judge found as a fact that the witness was not qualified as an expert to answer the question, or because the question assumed facts not warranted by the evidence. Assuming the exclusion of the question did not rest on the want of qualifications of the witness, but was based on the defendant’s contention that no evidence had been received or offered of any excessive or unreasonable amount of vibration in the operation of the cars in the instant case, and that
If the witness had attempted to say all that the plaintiff’s attorney said he would say, such statements by the witness could have been struck out as unresponsive. It may be noted that the exclusion of the question and of the offer of proof did not preclude the plaintiff from proving the various propositions if she could do so by any proper means. The offer of proof, so far as it was relevant to the questions asked, showed nothing of material help to the plaintiff. So far as it went beyond the questions, it cannot be considered. Coral Gables, Inc. v. Beerman, ante, 267.
The witness then testified, in substance, that he was able to give an opinion as to what caused the. depression just outside the rail on Concord Avenue from an examination of the photographs (Exhibits 2 and 5) and consideration of the conditions disclosed by the photographs; that in so doing he utilized the education and technical knowledge he had and took into consideration the type and weight of the cars operated on that line as testified to by a witness “who came from the Elevated.” The witness was then asked: “What
It is manifest that the relevancy and materiality of this question and of the preceding question excluded depend upon proof — which is not in the record — that would reasonably connect the defendant’s construction and maintenance of its tracks at the place of the accident, or the operation of cars thereon, with negligence by the defendant as the cause of the depression outside the rails at the place of the accident to the plaintiff. It is impossible to say on the record whether the exclusion of these questions was due to a finding by the judge, not expressed, that the witness was not qualified to give an opinion upon these matters, or was because the evidence in the case did not warrant a fipding of fact necessary to the reception of the opinions of the witness. The exclusion of the opinion (stated in one of the offers of proof) that the depression was the result of the improper condition and use of the railway was not prejudicial error, because that opinion is merely a conclusion based on unreported evidence, and because there is no proper offer to show and no evidence in the record to support an allegation of improper condition or use. Testimony given by the witness that vibration and jar would be an adequate cause for the depression of the highway adjacent to the rails, shown in the
We think there was no error in the exclusion of evidence, and that without the excluded evidence the remaining evidence in the record, with the inferences the jury could warrantably have drawn therefrom, was insufficient to support a finding that the defective condition of the highway at the place of the accident was due to the “carelessness, negligence or misconduct” of the defendant’s agents and servants.
It is not necessary to consider the effect of the release of the city of Cambridge, if there was any, upon the right of the plaintiff to maintain this action under St. 1923, c. 358, § 1.
Exceptions overruled.