223 Mass. 475 | Mass. | 1916
At the close of the evidence the defendant asked the court to rule:
“1. Upon all the evidence in the cases the plaintiffs are not entitled to recover.
“2. There is no evidence in these cases that the conductor of the car gave the signal for the car to start at the time the plaintiffs were alighting.
“3. There is no evidence in these cases that any negligence of the defendant, its agents or servants caused the car to start or jerk even if the jury should find it started or jerked.
“4. Upon all the evidence in these cases, no inference can be*477 drawn against either the plaintiffs or the defendant for the failure to produce the motorman of the car.”
In its aspect most favorable to the plaintiffs’ contention, the evidence warranted the jury in finding the facts to have been substantially as follows: The plaintiffs, a mother and her eight year old daughter, were passengers upon an inbound box car of the defendant. The car stopped, upon the signal of the mother, at the corner of Cambridge Street and Grove Street. After the car had stopped, the mother and daughter walked out through the aisle of the car side by side. They came to the edge of the platform, and were in the “motion of stepping out” when two bells were rung and “the car gave a sudden jerk.” The mother testified, “I made another effort to catch the handle of the car, and the second jerk came so quickly, the two jerks just came one after the other, like that — the second jerk threw the both of us out from the top platform to the rock pavings below.”
Direct and inferential testimony warranted, if it did not require, the jury to find that the bell was not rung by any person other than the conductor, and because of the elimination of all other agency, justified the conclusion that the conductor did so. Killam v. Wellesley & Boston Street Railway, 214 Mass. 283. Moreover, the jury might find that the car started or jerked after it had come to a full stop for passengers to alight and while the plaintiffs were alighting, and that such movement of the car was due to the negligence of the motorman in acting without signal. McDermott v. Boston Elevated Railway, 208 Mass. 104. Exceptions to the refusal to give the first, second and third rulings are overruled.
The fourth ruling should have been given. The absent witness, the motorman of the car, was not in the employ of the defendant. He had testified at previous trials of these cases, at the first two for the defendant and at the third for the plaintiffs. He had been discharged by the defendant previous to the first trial. There was no evidence that he was in the control of the plaintiffs or the defendant, or even that he was alive. There was, therefore, no room for inference that his testimony, if given, would favor the contention of either party, or that the failure of either party to produce him was due to fear that his testimony might injure their cause.
The presiding judge after fully and clearly instructing the jury
So ordered.
