258 Mass. 257 | Mass. | 1927
These are two actions of tort. In one Mary Fournier seeks to recover damages for alleged personal injuries sustained by her on December 20, 1918, at about five o’clock in the evening, when, as is alleged, she was attempting to board a street car of the defendant; in the other action her husband, John L. Fournier, seeks to recover for expenses incurred by him and alleged to have been necessitated by the same injury for which Mary Fournier sues. There was no question of pleading raised at the trial. At the close of the evidence, the defendant filed a motion requesting the trial judge to direct a verdict for the defendant in each ■case. The motion was denied and the defendant excepted.
The evidence for the plaintiff warranted the jury in finding that on Friday, December 20, 1918, the plaintiff Mary Fournier, accompanied by her sister, walked along Blanche Street in Chicopee, intending to take a trolley car bound for Holyoke. They stopped near the corner of Blanche Street and Chicopee Street opposite a white post, at a place where the cars of the defendant regularly stop to take on and let off passengers, and waited for a car. In about ten minutes the car approached with the headlight on. As it neared the post, the plaintiff and her sister raised their hands and walked toward the tracks, distant about fifteen feet. In response to their signals the car stopped opposite the white
On cross-examination the plaintiff described the incident as follows: “We got to the door at about the same time, but she [her sister] got hold of the handle first. I just stepped toward, to give her the right, because she had the suit case, and I took the left with my left hand. She got on the step about the same time I did. I heard the bell while my foot was on the steps. I was on the first step. After I heard the bell I knew the car was going to start. I was not behind my sister when I heard the bell. When the bell rung I had hold of the car, one foot on the step. I did not hurry when I heard the bell.... I had nothing to hurry for. I was right in place where I should get in the car.”
On the foregoing facts the motion for a directed verdict was refused rightly. The evidence established an invitation to the plaintiff to become a passenger, and acceptance of such, and a starting of the car at the signal of the conductor before the plaintiff was in a position of safety. Gordon v. West End Street Railway, 175 Mass. 181. Franz v. Holyoke Street Railway, 239 Mass. 565, 567.
Apparently upon the assumption that the car was stopped to receive the plaintiff and her sister, one or both, and upon the further assumption that the car started upon the signal of the conductor before the plaintiff had taken hold of the car and had begun to enter it by placing one foot on the step, the defendant requested the following ruling: “26. If Mrs. Fournier did not have hold of the car for the purpose of boarding it when the signal for the car to start was given, she was not a passenger and the defendant did not owe her the duty it owed a passenger.” This request was refused rightly. It is not true as an absolute proposition of law
On the assumption that the conductor gave the signal to start the car on the assurance of a passenger in the vestibule, at a time when the plaintiff did not have hold of the grab iron, the defendant requested the following ruling: “27. If Mrs. Fournier, at the time the passenger in the rear vestibule assured the conductor it was safe to start the car, did not have hold of the car for the purpose of boarding it, she was not a passenger; and the defendant did not owe her the duty it owed a passenger.” Inasmuch as the plaintiff could have been found to have been accepted as a passenger without her taking hold of the car, and inasmuch as she was not bound to anticipate that the car would be started while she was in the act of getting upon it (Ryan v. Pittsfield Electric Street Railway, 203 Mass. 283), it is plain the defendant was not entitled to have the request given in the form presented. A signal to start the car given by the conductor before the plaintiff, accepted as a passenger, had an opportunity to get fully upon the car, manifestly could not have the effect of a withdrawal of the invitation until the plaintiff heard or reasonably ought to have heard the signal and understood its purport.
The plaintiff, by way of answer to the release offered by the defendant and received in evidence, testified that on the day
In answer to the question, “Was Mr. Nevin guilty of fraud in procuring the release from the plaintiff?” the jury answered, “Yes.” The motion for a directed verdict based upon the release was refused rightly, and the question of fraud in obtaining it was properly submitted to the jury in view of the above quoted testimony.. O’Donnell v. Clinton, 145 Mass. 461, 463. Rocci v. Massachusetts Accident Co. 222 Mass. 336, 345.
The defendant, in its brief, puts its defence to the action upon the ground that the plaintiff was not a passenger when injured; and, if such, upon a release by the plaintiff (assuming the plaintiff was a passenger when injured). The defendant in its brief makes no issue of the due care of the
There was no error in the denial of the motion for a new trial. It was addressed to the sound discretion of the court; and although the evidence to which the motion was directed has elements of such improbability that a new trial might reasonably have been expected, nevertheless it cannot be said that the accident could not have happened substantially as described by the plaintiff, nor that the story of the release is false and lacks even the merit of originality. A judge is not bound, as matter of law, to set aside a verdict because in his opinion it is against the weight of the evidence; if he were so bound, the result would be “the trial of facts by the court instead of the jury.” Reeve v. Dennett, 137 Mass. 315, 318.
Exceptions overruled.