270 Mass. 400 | Mass. | 1930
The plaintiff was injured by a spark as she was upon a station platform of the defendant’s railroad. Nearby “smoke and soot and sparks” were coming from a train “and the piece of coal which went on her chest came from the smoke stack of the locomotive.” “It may have been about one half inch long and about half an inch wide.” Nothing more appeared in evidence to indicate negligence of the defendant contributing to the accident. This was not enough to require that the case be sent to the jury. The judge was right in directing a verdict for the defendant.
The mere happening of the accident did not show failure on the defendant’s part “in not providing and keeping in suitable repair the best well known practical contrivances to prevent the unnecessary escape of sparks from the locomotive.” Wallace v. New York, New Haven & Hartford Railroad, 208 Mass. 16, 18. It is not a case of res ipso loquitur. The injury “may have arisen merely as an unavoidable accident from the careful and skilful exercise of [the defendant’s] lawful rights in spite of the observance of all proper precautions.” Carney v. Boston Elevated Railway, 212 Mass. 179, 180. No testimony was introduced to show any failure on the part of the railroad corporation in equipping its locomotive, or in neglecting to repair any defect which it knew or should have known to exist. In principle the case is controlled by Shine v. New York, New Haven & Hartford Railroad, 236 Mass. 419, and Wallace v. New York, New Haven & Hartford Railroad, supra.
Judgment for the defendant.