229 Mass. 421 | Mass. | 1918
This is an action of tort to recover damages for personal injuries received by the plaintiff while attempting to board a car upon an elevated train of the defendant at the North Station in Boston shortly before midnight, at a time when extensive changes were under way rendered necessary by the construction of the Washington Street tunnel. The location of the tracks and the platform were temporary and the plaintiff received injuries
1. The plaintiff was permitted, subject to the exception of the defendant, to show that there were several persons in uniform and apparently employees of the defendant standing in a group outside the door from the station to the platform, that after passing them she saw no other employee or person in uniform on the platform and that a brakeman or guard standing between two cars near where she went into the hole said nothing to her in the way of warning. In this there was no error. The design of the platform, the space between it and the cars and the relation of the rails to the platform were not permanent and were established by the defendant in accordance with its own plans. These plans were not approved by any public board. They were not inflexible nor imperatively required in that precise form by the scheme adopted by the public authorities and imposed on the defendant. There was considerable latitude of choice to the defendant in the determination of these details. The relation of tracks to platform, as it had been before the construction of the changes had begun, was more nearly straight and there was less space for the passenger to step over in going from the platform to the car. This was the first time the plaintiff had been at this station since the changes had been in progress. Whether under these transient conditions it was reasonable for the defendant, in the performance of the duty owed by it to its passengers, to provide guards or to give warning, were questions of fact for the jury. Plummer v. Boston Elevated Railway, 198 Mass. 499, 508, 510. Brisbin v. Boston Elevated Railway, 207 Mass. 553.
The case is quite different from those of which Falkins v. Boston Elevated Railway, 188 Mass. 153, Willworth v. Boston Elevated Railway, 188 Mass. 220, Hawes v. Boston Elevated Railway, 192 Mass. 324, and Seale v. Boston Elevated Railway, 214 Mass. 59, are examples, where it has been held that, the platform being constructed by the transit commission, the defendant is not responsible for space between it and the cars even though the stop may be made opposite a curve, and that there is no obligation resting upon
For the same reason it was not error to deny the defendant’s requests for rulings to the effect that the defendant was not required to give any notice of the space and that, if the space was only ten inches, the plaintiff could not recover. Harrington v. Boston Elevated Railway, 221 Mass. 299.
Moreover a considerable discretion was vested in the presiding judge in admitting evidence to show the incidents immediately preceding and attendant upon the accident. Such facts cannot be said to be without bearing upon the due care of the plaintiff, and may have been of assistance in enabling the jury to understand the conditions which confronted her. All the circumstances under which an injury is received ordinarily may be put in evidence.
2. The admission of the question, whether the plaintiff as she was about to enter the car was “in a position where” she “would have heard if anything had been said in regard to the space,” was not reversible error. The pertinent inquiry in that connection was her precise position with reference to the brakeman. Where she stood and what was her posture, like facts respecting him, and the distance between the two, were material. While it would have been better practice, because less liable to run into an incompetent field, to have developed these basic facts by appropriate interrogatories, an abbreviated question including all these circumstances, subject as it was to cross-examination, does not appear to have been injurious to the defendant. See Slattery
3. There was no reversible error in permitting the plaintiff to show by examination of the defendant’s engineer that plan 3, which delineated the temporary location of platform and tracks as they were for a period of about eight weeks including the time of the plaintiff’s accident, was not approved by the railroad commission. It was pertinent as indicating that the defendant was not entitled respecting these structures to the protection against liability established by the decisions as to permanent structures, such as Collins v. Boston Elevated Railway, 217 Mass. 420, where earlier cases are collected. Since the presiding judge ruled that there was no duty resting on the defendant to have the plan approved and hence no negligence in not securing such approval, it is not necessary to consider whether St. 1897, c. 500, § 6, requiring approval in certain instances, applies to this kind of construction.
4. An expert engineer was permitted to testify that in his opinion the temporary platform in use at the time of the plaintiff’s accident was not a reasonably proper construction. This was not a mere opinion about common things of ordinary construction, as to which the simplicity of common sense is a safer guide than the niceties of technical learning. Whalen v. Rosnosky, 195 Mass. 545. Gleason v. Smith, 172 Mass. 50. Walker v. Williamson, 205 Mass. 514. Lynch v. C. J. Larivee Lumber Co. 223 Mass. 335, 340. Amstein v. Gardner, 134 Mass. 4, 9. Spokane & Inland Empire Railroad v. United States, 241 U. S. 344, 351. It involved, as a necessary element of an intelligent answer, engineering skill directed to complicated conditions under which the platform, the curves, grades and alignment of tracks for the temporary uses must be constructed and maintained. His answer means that under these conditions an arrangement of structures might have been designed and built offering less hazard to the traveller than those adopted by the defendant. Manifestly this was outside the range of common knowledge. It was not an inference from proven facts as to which men of ordinary expe
5. A witness called as an expert engineer, having given evidence at length respecting matters within his special department of knowledge, on redirect examination was permitted to testify that he had been employed by the defendant as an expert in engineering. It is not an uncommon practice to examine a witness, offered as an expert, respecting his experience and the various persons who have availed themselves of his superior knowledge. Much must be left to the discretion of the presiding judge. The question and answer here complained of cannot be said as matter of strict law of evidence to have been incompetent. It would have been a much better exercise of judicial discretion to have excluded the evidence. It is difficult to conceive of a case where it would not be wiser discretion, in the presiding judge to exclude such an inquiry altogether whenever put. Ordinarily it is preferable practice for manifest reasons not to receive such evidence. But, even where testimony has been regarded as "very objectionable” in this particular, its admission is not treated as reversible error if there is any justification whatever for the conduct of the presiding judge. Conness v. Commonwealth, 184 Mass. 541, 544. Randall v. Peerless Motor Car Co. 212 Mass. 352, 385. Fourth National Bank of Boston v. Commonwealth, 212 Mass. 66, 69. The present inquiry falls within that principle.
6. A witness, called by the defendant and at the time of the accident a motorman in its employ, was asked whether the defendant ran any trains of five cars between eleven and twelve o’clock at night. The exclusion of this question is not reversible error. It does not appear that his knowledge of the train operations of the defendant was so comprehensive as to make his testimony of any value. Moreover, no offer of proof was made. Cook v. Enterprise Transportation Co. 197 Mass. 7, 10.
7. One question raised at the trial was whether the defendant ought, in the exercise of due care, to have installed a sliding platform in order to bridge the space between the immovable platform and the car door at which the plaintiff testified she was injured. There was also testimony that the distance between the
8. There was no error in the refusal to give the several requests presented by the defendant. Whether due care required the defendant to install a movable platform at the place of injury as a part of its temporary structures, was a question of fact. As has been pointed out, the same rule of liability did not govern the obligation of the defendant as in the subway decision cases. The statement of legal obligation in Plummer v. Boston Elevated Railway, 198 Mass. 499, 509, is not relevant to these different facts. There was testimony to the effect that it would' have been good engineering to have used such a platform under the conditions here disclosed at the particular place of injury. The criticisms urged by the defendant to this testimony affected its weight rather than its competency. It could not have been ruled as matter of law that it would have been negligence for the defendant’s guard to call out or to fail to call out, “wide step.” Here again the general principles applicable to the subway and tunnels, Hogan v. Boston Elevated Railway, 195 Mass. 313, do not necessarily govern duties of the defendant in the situation at bar.
9. Whether the train consisted of four or five cars was a question of fact on all the evidence. Whether the plaintiff could recover if she attempted to go upon the first car at a regular stopping place was also for the jury upon all the evidence. If it were a train of four cars, the plaintiff contended with some show of support in evidence that the first car might have been found to
10. There was no error in the charge respecting the testimony of the witness Farrington to the effect that he stood between the two cars and called out to the passengers to “ step wide.” If this had been found to be the fact, there could hardly have been negligence on the part of the defendant. But whether he did so call out on the night in question was a point as to which the evidence was conflicting. The reference in the charge to testimony by other witnesses respecting what had occurred on other nights, as compared with the night in question, bore merely upon the weight to be given to Farrington’s testimony. It is not open to exception.
11. So far as the subjects to which the requests of the defendant related were necessary parts of the charge, they were adequately covered, and, so far as they were refused, they either were not correct or were directed to details or fragments of evidence concerning which the presiding judge could not be required to give instructions. Ayers v. Ratshesky, 213 Mass. 589.
12. The presiding judge early in the trial inquired of counsel whether they had talked as to the settlement of the case, and said that they ought to consider that matter. Later the judge “called the defendant’s counsel to the bench, and, not in the hearing of the plaintiff’s counsel and not in the hearing of the jury, but while the jury were in their seats, told the defendant’s counsel that he ought to settle the case, that he ought to be willing to pay anywhere from $3,750 to $5,000 to settle the case, adding that that did not mean that the court would set aside a verdict for twice that amount.” This statement was inserted in the defendant’s second bill of exceptions relating to matters arising on its motion for a new trial. The judge indorsed upon the exceptions that this statement was without foundation in fact but “I allow it as a statement of fact to prevent the delay which would be caused by sending this case to a commissioner.” This was irregular. The
13. “It is the right of every citizen to be tried by judges as free, impartial, and independent as the lot of humanity will admit.” Declaration of Rights, art. 29. The conduct of the presiding judge did not violate the justly strict and lofty standard of our Constitution. It is not necessarily a transgression of judicial propriety to suggest to parties in appropriate instances the wisdom of a compromise of conflicting contentions. It is a suggestion which always should be ventured from the bench with caution. There are cases where the right or obligation at stake is not susceptible of concession without the profanation of principles which rightly may be held inviolable by one or more of the parties. Ordinarily a judge may presume in these days that the possibility of compromise has not been ignored by counsel or parties in cases where compromise is feasible or just. In In re Nevitt, 54 C. C. A. 622, it appeared that a judge had for several years “-endeavored to persuade the parties to the controversy to compromise the litigation. ” It was said respecting that conduct when urged as a disqualification to a decision of the case on its merits by the same judge, that (page 626) “his earnest and systematic endeavors to effect a compromise of this controversy bespeak for him emphatic commendation. The policy of the law has always been-to promote and sustain the compromise and settlement of disputed claims.” This laudation goes rather far. But it shows that an intimation as to the practical sagacity of harmonizing adjustable differences is not of itself an impairment of the judicial function.
14. It follows from what has been said that there is no error of law disclosed in the proceedings on the motion for a new trial. The general rule prevails that the granting or denial of such motion rests in the sound discretion of the trial judge. Simmons v.
15. The defendant did not take exception to the remarks of the judge- when made, or move that the trial be suspended, or that the jury be discharged. As was said in Crosby v. Blanchard, 7 Allen, 385, 387, parties cannot “take their chance for a favorable verdict, reserving a right to impeach it or set it aside, if it happens to be against them, for a cause which was previously well known to their counsel.” Fox v. Hazelton, 10 Pick. 275. Gray v. Boston Elevated Railway, 215 Mass. 143, 150. Orrok v. Commonwealth Ins. Co. 21 Pick. 456.
16. The defendant has argued that the record taken as a whole shows such an element of prejudice against it on the part of the presiding judge that a trial fair to it could not have been had. The case has been considered on the footing that such contention is open even though no exception was taken. See Noyes v. Noyes, 224 Mass. 125, and cases cited at page 134. It is not necessary to narrate the numerous expressions scattered through the record of a long trial upon which reliance is placed. Whatever else may be said respecting them, a careful examination of the entire record fails to reveal such conduct as constitutes reversible error. We are not convinced that the defendant did not receive fair treatment at the trial.
The result is that the petition for the allowance of exceptions is allowed and that each bill of exceptions is overruled.
So ordered.