256 Mass. 217 | Mass. | 1926
It was undisputed at the trial that the plaintiff while a passenger on a train of the defendant and in the exercise of due care suffered personal injuries from a derailment of the car caused by the breaking of an axle. The plaintiff asked the trial judge to rule as follows:
“4. The doctrine of res ipso loquitur applies to this case. It applies in the case of an unexplained accident which in the ordinary experience of mankind would not have happened without fault on the part of the defendant.”
“8. The plaintiff having shown the derailing of the car, this fact until explained by the defendant, was evidence of negligence which the jury could find in the ordinary course of affairs would not have happened if proper precautions had been taken.
“9. The entire management of track and equipment was in the control of the defendant. If the plaintiff shows that the car in which he was a passenger left the track the jury might well find from common experience if nothing further appears, that if neither the car nor the track was defective it would not have been derailed and therefore the defendant was guilty of negligence.” •
“11. If the axle of the railroad car in which the plaintiff was being transported as a passenger by the defendant broke, causing the car to be derailed, as the train was going along in the ordinary way, and the plaintiff was injured, it makes out a prima facie case for the plaintiff. The injury under such circumstances would imply negligence of the defendant. It would be inferred from these facts that the car was not properly fitted and provided with suitable and safe axles. The presumption of law standing alone with such facts proven is such that it would support an inference of negligence unless the defendant by going forward with evidence offers what the jury may find an adequate or satisfactory explanation*220 of the accident prising from causes other than from its own want of care.”
The requests were denied, and, a verdict having been returned for the defendant, we are asked to order a new trial, because of the denial, and for alleged error in a portion of the charge to the jury.
It is settled, that in an action between a passenger and common carrier for injuries received during transportation, if from common experience the accident would not have happened unless there was a defect in the car or in the roadbed or carelessness in the management of the car, evidence of the accident and of the plaintiff’s due care are prima fade sufficient to establish liability, where no evidence is offered tending to show that the carrier has not been guilty of negligence. Spooner v. Old Colony Street Railway, 190 Mass. 132. Carroll v. Boston Elevated Railway, 200 Mass. 527. Nolan v. Newton Street Railway, 206 Mass. 384. But, even if the cause of the accident in the case at bar was definite and certain, the burden of proof which did not shift, was on the plaintiff to satisfy the jury on all the evidence that it was due to the defendant’s carelessness. Carroll v. Boston Elevated Railway, supra. While the evidence introduced by the plaintiff showed the breaking of the axle and the derailment, it also showed an inspection of the car shortly before the accident, and that the axle which had been bought from the Laconia Car Company was at the time of purchase in proper condition and that the defendant was ignorant as to the cause of breakage. The defendant also offered evidence of the conditions under which the axle broke, and the use to which it had been subjected, as well as the mode of inspection of cars and axles by the company. The defendant was not an insurer of the plaintiff’s safety. It only undertook to provide and maintain suitable cars, and whether that duty had been performed was for the jury. Marshall v. Boston & Worcester Street Railway, 195 Mass. 284, 286, 287.
The requests, in so far as applicable were fully covered by the instructions which correctly stated the law. Carroll v. Boston Elevated Railway, supra. Rich v. Silverman, 216 Mass. 195. Connors Brothers Co. v. Sullivan, 220 Mass. 600.
Exceptions overruled.