319 Mass. 177 | Mass. | 1946
The plaintiff became a passenger upon the motor bus of the defendant at Marlborough on the morning of December 5, 1941, and sat on the first cross seat on the right hand side of the bus. This seat was located directly back of the well, which was eight or ten inches below the level of the floor of the bus and which was used as a passageway for passengers entering or leaving the bus. There was
A common carrier is not liable to a passenger for personal injuries resulting from jerks or jolts of a street car or a motor bus which are incidental to the ordinary operation of the vehicle. In order to recover, the passenger has the burden of showing, by the physical facts which accompanied and had their origin in the jerk or jolt, that the movement of the vehicle was so much more violent than could be reasonably expected from the ordinary operation of the vehicle as to warrant an inference of negligence. This burden is not sustained by evidence that shows no more than mere expressions of feelings or emotions experienced by a passenger at the time of the occurrence of a jerk or jolt. The question in each case is whether the extent and severity of the jerk or jolt are such as fairly to indicate negligence in the operation of the vehicle. We think the evidence was sufficient to support the finding of the jury that there was such negligence. Seidenberg v. Eastern Massachusetts Street Railway, 266 Mass. 540, 543. Johnson v. Berkshire Street Railway, 292 Mass. 311. Carson v. Boston Elevated Railway, 309 Mass. 32, 35-36. Cuddyer v. Boston Elevated Railway, 314 Mass. 680, 682.
We need not decide whether the denial of the motion to
One of the issues was whether the bus started in an unusual or extraordinary manner. The plaintiff, who had ridden upon this bus line for fifteen years, was properly permitted to testify that she had never observed a bus start up as did this one at the time of the accident. In Partelow v. Newton & Boston Street Railway, 196 Mass. 24, 31, it was held that there was no error in admitting the testimony of a conductor that the jerk of the car was an ordinary one. “It was of course impossible to measure accurately the lurch of the car, or to describe it so as to enable the jury to determine its amount with exactness. It naturally would be described according to the standard of everyday experience. This is one of the many cases in which'a witness may state the result of his observation, although it involves in some measure his opinion or judgment.” The plain implication of the plaintiff’s testimony is that the jolt was an unusual one. If one may testify from years of experience that a jolt was usual, it is equally competent for one with fifteen years’ experience to testify that a particular jolt was unusual. Robbins v. Springfield Street Railway, 165 Mass. 30, 37. Welch v. New York, New Haven & Hartford Railroad, 176 Mass. 393, 400. See Conley v. Town Taxi, Inc. 298 Mass. 130. The instant case is distinguishable from Simon v. Berkshire Street Railway, 298 Mass. 454, where it was held that any difference in the speed of an automobile from its customary speed was immaterial on the issue of the defendant’s negligence. Here the customary manner in which buses start up furnished the standard by which to • determine the defendant’s negligence in starting the bus at the time of the accident.
The plaintiff, a teacher in a public school "and also a re
Exceptions overruled.