235 Mass. 422 | Mass. | 1920
This is an action of tort for injuries sustained by the plaintiff on May 11, 1916, at about 5:54 P.M., while she was a passenger on an outbound open car of the defendant on Washington Street at Savoy Street. No question is raised as to the sufficiency of the pleadings. The presiding judge at the close of the trial in the Superior Court refused to accept a
Assuming, as we must in the silence of the record, that the first verdict of the jury, for the plaintiff, was not affirmed and recorded before the judge had ordered a verdict for the defendant, it follows that the judge acted within his right, and that the only question of law saved by the plaintiff’s exceptions is whether any aspect of the evidence required that the plaintiff’s case should be submitted to the jury. See Byrne v. Boston Elevated Railway, 198 Mass. 444, 451; Hatch v. Boston & Northern Street Railway, 205 Mass. 410; James v. Boston Elevated Railway, 213 Mass. 424.
The evidence in its aspect most favorable to the contention of the plaintiff warranted the jury in finding that the plaintiff, as a passenger, was seated on the front seat on an open car of the defendant as it proceeded along Washington Street, Boston; that she retained her seat while the car was stopped for five or ten minutes at Savoy Street by the motorman, at the order of a man with a blue uniform and a hat on which was a brass plate inscribed with the word "Inspector,” and continued to occupy the same seat when the motorman, ordered by the same person who had ordered that the car be stopped, sent the car ahead “at a pretty quick speed;” that, shortly before the car on which the plaintiff was a passenger arrived at Savoy Street, there had been a fire on the elevated structure of the Boston Elevated Railway Company near Savoy Street, which had been extinguished by a chemical solution of bicarbonate of soda, water and vitriol, passed through three hundred and fifty feet of hose of the city of Boston fire department; that the firemen played the hose of the chemical engine on the elevated structure "while the car was going up the street,” but stopped "playing” and were winding up the hose before the car came to a standstill; that the "structure or the overhead iron work was dripping the way it would after a rain storm;” that the car remained stopped five or ten minutes; that the “man with a blue uniform with the word ‘Inspector’ on his hat” beckoned the motorman to go ahead; that in response to the signal the motorman started the car and went ahead after sounding his gong, "quick;” that the motion of the car and the wind from the outside forced the drops as they fell into the front of the car in the form of a spray, which looked like
The evidence would fully warrant the jury in finding that the plaintiff was in the exercise of due care in remaining in her seat during the time the car was at a standstill and when it moved. The falling drops had to her the appearance of water or of a white liquid, and so far as the evidence discloses she had no knowledge of their chemical composition.
And the evidence was entirely inadequate to warrant a finding that the motorman or inspector was negligent. The chemical engine was in charge of and operated by firemen of the fire department of the city of Boston. The record discloses no facts to justify the inference that either the inspector or the motorman knew or should have known that the liquid used by the fire department in extinguishing fires with chemical engines would probably cause harm of some kind and degree to some person whom it should strike or envelop, unless active measures were taken to guard and protect such a person from its contact. In the absence of such knowledge, it was not negligent to order the car forward or to go ahead with it although drops of liquid had not entirely ceased to fall from the structure.
It follows by the terms of the report that “the verdict for the defendant is to stand.”
So ordered.