Gardner v. Boston Elevated Railway Co.

204 Mass. 213 | Mass. | 1910

Sheldon, J.

The female plaintiff seeks to recover for personal injuries alleged to have been caused to her by the sudden starting of one of the defendant’s cars, while she was stepping into it, through the negligence of the conductor. On the evidence the case was one for the jury to pass upon.

1. The defendant contends that the judge at the trial, in charging the jury upon the issue as to the defendant’s negligence, set the standard of its duty too high; and we are of opinion that this complaint is well founded. The judge said to the jury: “ The common carrier has a duty with reference to the passengers, which is to exercise the highest degree of care which can be exercised by human agency, consistent with the operation of the road. It is not the care of ordinary prudence; it is the highest degree of care which a man can exercise with reference to running his car; and the failure of the conductor to exercise proper care is the negligence of the road. ... It was the duty of the conductor to observe whether people were getting on or off the car when the car was stopped, and to give the passengers a reasonable time, those who were getting on the car, to get on and reach a place of reasonable safety; not that they are obliged to give them time to get to a seat, but to give .them time to get to a place of reasonable safety; and if the car started without giving that time, then you consider whether that is that high degree which the law compels the common carrier to exercise; and if it was not, then the company were negligent.”

It is reasonable care under the existing circumstances that one person has the right to require of another; and that degree of care becomes increased with any increase of the apparent danger involved in its absence or with the increased power of control of one of the parties whose conduct is in question. Uggla v. West End Street Railway, 160 Mass. 351. Cunningham v. Hall, 4 Allen, 268. A common carrier of passengers either by rail or by water has so complete a control and the consequences of negligence on his part may be so serious that he is justly held to a very high degree of care for their safety; and accordingly it has been often said, both in this and in other jurisdictions, that he is held to the exercise of the highest degree of care. But as was pointed out in Dodge v. Boston & Bangor Steamship Co. 148 Mass. 207, 217, 218, this phrase and similar words which have been used to convey the same idea mean simply that the carrier is bound to use the utmost care consistent with the nature of his undertaking and with a due regard for all other matters that ought to be considered in conducting the business. This conductor was not bound absolutely to exercise the highest degree of care in running his car, but only the highest degree of care which was consistent with the practical performance of all his duties in seeing that the car was run safely without unreasonable delays, and so as to provide for the safety and convenience and properly rapid transit of his passengers. What was required of him was the highest degree of care consistent with the practical management and operation of his car for the carriage of passengers, “or in other words, the requirement [was] reasonable care according to the nature of the contract ” with the passengers. Galligan v. Old Colony Street Railway, 182 Mass. 211, 214, 215. Carroll v. Boston Elevated Railway, 200 Mass. 527. Marshall v. Boston & Worcester Street Railway, 195 Mass. 284, 286. Millmore v. Boston Elevated Railway, 194 Mass. 823. Olds v. New York. New Haven, & Hartford Railroad, 172 Mass. 73, 77.

None of these qualifications was stated to the jury in the case at bar; the rule was given to them as an absolute one without explanation other than that the care to be required must be “consistent with the operation of the road.” This was not a sufficient statement of the limitations which we have mentioned.

We cannot say that juries are so inclined to belittle the duties of common carriers or to hold them to so insufficient a degree of responsibility that we can regard this error as trivial or as one ■ that may be disregarded.

2. Dr. Richardson testified in chief that in his opinion the plaintiff was suffering from traumatic neurosis, for which the accident as described would be an adequate cause. On cross-examination he testified to statements which he had made in an article previously written about litigation for accidents and nervous affections in connection therewith. Some of these statements might be found by the jury to affect the weight both of his reasons for the opinion which he had given on direct examination and of the opinions themselves to which he had testified. Snow v. Adams, 200 Mass. 251.

The effect of the judge’s charge as to Dr. Richardson’s statements in this article was to exclude them wholly from the consideration of the jury for any purpose ; and this was erroneous. There is nothing in Payne v. Springfield Street Railway, 203 Mass. 425, inconsistent with this conclusion. Of course a physician’s opinion about a plaintiff’s condition, formed simply upon the cases of other persons, would not have been competent; but that was not this case.

The second case, in which the husband of the plaintiff in the first suit seeks to recover for the damages caused to him by the injury done to her, stands upon the same footing as her own case. Lundergan v. New Yorh Central & Hudson River Railroad, 203 Mass. 460.

JLExceptions sustained.