171 Mass. 233 | Mass. | 1898
The defendant excepted to the refusal to rule that the plaintiff could not recover. The defendant’s passenger express train ran itito the end of an accommodation train as it was on the point of moving away from the station at' Hyde Park at about half past five o’clock in the afternoon of October 24, 1895. The occurrence of such an accident, unexplained, is some evidence -of negligence of the defendant or its servants. White v. Boston & Albany Railroad, 144 Mass. 404. Mahoney v. New York New England Railroad, 160 Mass. 573, 579. Hennessy v. Boston, 161 Mass. 502.
There was evidence to warrant a finding that the plaintiff was a passenger on the express train at the time of the accident. A witness testified that he was -at Pawtucket, Rhode Island, on that
There was testimony that when he left Pawtucket on that day he was in perfect health, and that he had always been in good health previously. There was testimony from numerous witnesses tending to show that he was in a peculiar mental condition at Hyde Park. He had a wound on his hand and one or two slight bruises on his head. The physician who attended him there said that he was weak, trembling, nauseated, and in a cold perspiration, that his pulse was slow, and that the pupils of his eyes were unusually dilated. He seemed dazed, and refused to give his name. The evidence tended to show that his subsequent physical and mental condition was such that at the time of the trial it would have endangered his life to leave home and come to court, and that if he could have been present it would have been impossible for him to testify. The evidence well warranted a finding that his condition was caused by an injury received at the time of the collision at Hyde Park.
The defendant contends that there was no evidence that he was in the exercise of due care, inasmuch as no witness remembers seeing him from the time when he parted with his friend at Pawtucket until he was in the station at Hyde Park. But the conductor testified to going through the train and taking up the tickets of the passengers seven times between Pawtucket and Hyde Park, and said that all the passengers had paid their fares before the accident. He did not remember seeing the plaintiff. This is evidence tending to show that the plaintiff was in a
• The defendant excepted to the finding of the judge in regard to the damages. If we assume that this exception is open to the defendant, we are of opinion that no question of law is involved in it. The presiding justice, who tried the case without a jury, put upon a paper a memorandum which indicated his view of the facts on which his assessment of damages was founded. The only part of the finding to which exception is taken is to the amount allowed as compensation for the loss of ability to earn money. This the judge fixed at a sum equivalent to the present worth of an annuity of fifteen hundred dollars for ten years, computing interest at four per cent. The computation on this basis does not indicate that the judge thought it gave an ascertained mathematical measurement of the damages for the loss of earning capacity. It involves estimates which, at the best, were uncertain and merely approximate. Neither the degree of future disability nor the time that disability would continue could be told except as a probability, nor could the income or rate of interest that a fixed sum awarded as damages could be made to produce for a long period of years be known. If these elements could be exactly ascertained, the rest would be only a matter of computation. The objection to the method adopted is not that the judge could not find as a fact that the plaintiff’s loss of earning capacity would probably be equal in the aggregate to fifteen hundred dollars a year for ten years, although it would not be precisely the same each year, hut that there was no evidence of the cost of an annuity of that amount for that length of time. The actual cost of an annuity irt the market was immaterial, except
Exceptions overruled.