133 Mass. 507 | Mass. | 1882
The burden of proof is upon the plaintiff to show that her intestate was using due care when the accident happened, and that his death was not instantaneous, so that a right of action existed in him which would survive to her. It is impossible to tell from the evidence how the intestate fell from the cars, what he was doing at the time, whether his death was instantaneous, or whether he endured any conscious suffering before his death. These questions are left to conjecture. The evidence would not justify the jury in finding that the plaintiff had sustained the burden of proof which was upon her as to these points, and the Superior Court therefore rightly directed a verdict for the defendant. Moran v. Hollings, 125 Mass. 93, and cases cited. Judgment on the verdict.
