Curtin v. Boston Elevated Railway Co., 194 Mass. 260

194 Mass. 260 | Mass. | 1907

Morton, J.

Whether the plaintiff’s intestate was in the exercise of due care or not, in standing on the fender to adjust the trolley, was clearly, we think, a question for the jury, as was also, we think, the question whether the motorman accidentally touched the controller or the brake as he was assisting the plaintiff’s intestate, and thereby caused the car to start. The motorman testified that he was positive that he did not touch the controller and the jury could have found that the car started in some other way, though the more reasonable explanation would seem to have been that the car was started inadvertently by the motorman as he leaned forward to take hold of the trolley rope to assist the plaintiff’s intestate. We also assume in favor of the plaintiff that if the car started of itself it would, be some evidence of a defect. But we see no evidence of negligence on the part of the defendant in failing to discover the defect if there was one. There was nothing to show that the car had ever started before from a state of rest. There was nothing to show that the car was not in first class condition before the accident, and the undisputed evidence was that it went to the end of the route after the accident “ perfectly properly.” The only cause of the accident which the expert who was called by the plaintiff suggested was that there might have been a short circuit somewhere. But if there was a short circuit neither he nor any one else attempted to show how it occurred or that it could have been discovered by the exercise of proper care on the part of the defendant. On the contrary, the expert admitted, in effect, that he never knew of a ear being started by a short circuit, and that, though he had heard of a car starting of itself, he never could see any evidence of a short circuit in such cases. The cause of the accident was, therefore, wholly a matter of conjecture. Cases where negligence has been inferred from the happening of the accident do not apply. In those cases the circumstances were such that the jury were justified in inferring in the absence of any explanation, that according to common experience the accident would not have happened except for the defendant’s fault. But where, as here, even if the accident may be evidence of a defect somewhere, the cause of the accident remains wholly a matter of conjecture and no one can say in the absence of explanation either from common experience or otherwise that it happened through the fault of the defendant the doctrine of res ipso loquitur does not apply. The mere happening of an accident under such circumstances never has been held to be enough of itself to render the defendant liable. Kenneson v. West End Street Railway, 168 Mass. 1. Hofnauer v. R. H. White Co. 186 Mass. 47. Faulkner v. Boston & Maine Railroad, 187 Mass. 254. In Byrne v. Boston Woven Hose & Rubber Co. 191 Mass. 40, one of the latest of the cases relied on by the plaintiff, there was testimony tending to show that the machine had been broken and repaired, and that it was impossible for it to start from a full stop unless there was some defect in the belt or the machine itself, and manifestly, if there was, failure to discover it could properly be imputed to the defendant’s negligence. In Hebblethwaite v. Old Colony Street Railway, 192 Mass. 295, the latest case relied on, the circumstances were clearly such as to warrant a finding that there was a lack of proper care on the part of the defendant.

Exceptions overruled.