272 Mass. 346 | Mass. | 1930
These are actions brought by the several plaintiffs to recover for personal injuries, alleged to have resulted from the derailment of a trailer car on which they were passengers. The actions were tried together in the Superior Court. Under a stipulation entered into by the parties, the only question submitted to the jury was whether or not the accident in which the alleged injuries occurred was caused by negligence of the defendant. The jury found that the accident was so caused. The trial judge at the request of the defendant reported the cases to this court. The plaintiffs did not introduce any evidence as to the cause of the accident, but relied upon a presumption of negligence arising from the accident itself. The defendant introduced evidence to show that the accident was caused by a bolt falling or being knocked into a switch over which the car was passing, and that it was not from any part of the defendant’s equipment; it suggested that the bolt had been knocked into the switch by a passing motor vehicle.
The defendant’s first exception is to the exclusion of certain specifications signed by an attorney of one of the plaintiffs. The defendant contends that the specifications in question contained statements that the accident was caused by a bolt in the switch, and that the exclusion of the specifications, and the failure of the plaintiffs to introduce evidence as to the cause of the accident, gave the plaintiffs the benefit of the doctrine of res ipso loquitur
The defendant’s second exception is to the denial of the defendant’s motion to direct verdicts in its favor. The grounds .urged in support of this motion may be summarized as follows: (1) that the accident was caused by a bolt in the switch; therefore, as the cause of the accident was known, the doctrine of res ipso loquitur is not applicable; (2) that there is no evidence that the presence of the bolt in the switch was the result of negligence of the defendant; and (3) that, the plaintiffs having failed to introduce evidence of negligence of the defendant, and there being no presumption of negligence, the judge should have directed verdicts for the defendant.
It is plain that this entire argument is based upon the testimony as to the presence of the bolt in the switch, but the jury were not bound to believe this testimony, and if it was disbelieved there was no evidence as to the cause of the accident. Even if the testimony in regard to the bolt was uncontradicted, the jury had a right to find that it was not entitled to credence. Lindenbaum v. New York, New Haven & Hartford Railroad, 197 Mass. 314, 323. Guinan v. Famous Players-Lasky Corp. 267 Mass.
The defendant’s third exception is to certain parts of the judge’s instructions which are as follows: “Unless you . . . find by the preponderance of the evidence that the accident was caused in a particular manner, you may treat the fact that the accident happened as it is agreed it did happen as some evidence of negligence ... for which the defendant is responsible; but if from the evidence you . . . find that the accident happened in a particular manner, then you can no longer draw any inference of negligence . . . from the happening of the accident itself, but you must then consider only the question whether the evidence shows negligence of the defendant or its servants which actually caused the accident in the particular manner in which you find it actually happened. If . . . you find by the preponderance of the evidence that the accident happened because of the presence of an iron bolt ... in the switch, then I instruct you that you must answer the question 'No’. . . . But if you fail to find that the accident was caused by the bolt then you may come back to the general proposition that the happening of such an accident as this is some evidence of negligence ... of the defendant and its servants, and then consider whether in fact by the greater weight of evidence the accident was caused by negligence of the defendant or not.” It is the contention of the defendant that the use of the word “preponderance” in the foregoing instructions in effect relieved the plaintiffs of the burden of proof; that if the defendant’s evidence as to the cause of the accident exactly balanced the evidence of negligence arising from the accident itself, the jury under the instructions would find for the plaintiffs. It is to be noted that the judge did not instruct the jury that unless the defendant,
The defendant’s fourth exception is to the alleged error of the judge in permitting the plaintiffs to ask hypothetical questions based on facts not in evidence, and in denying defendant’s motion that such questions and the answers thereto be struck out. Any harm which the defendant might otherwise have suffered was cured by the following instructions: “In this case . . . the plaintiffs have failed to show just how the accident happened, and have failed to show just what the defendant did, if anything, or failed to do, if anything, that caused the accident. The evidence for the plaintiffs as to possible causes of the accident was not based upon any facts proved. The theory of the possibility of electrical disorder was not accompanied by any evidence that there was any such disorder. The theory of a looseness of the tongue in the switch or a wearing of the wheels or parts was not accompanied by any evidence that there was in fact any such looseness or wearing. The theory of undue speed in approaching the switch was not accompanied by any evidence of undue speed or any evidence that undue speed could have caused this
All the exceptions argued have been examined; those not argued need not be considered. We find no error in the conduct of the trial.
Exceptions overruled.