201 Mass. 182 | Mass. | 1909
These are actions of tort, that of the female plaintiff being for injuries to her person, and that of the male plaintiff for the consequential damage suffered by him as her husband.
The plaintiff in company with another woman named McCarty took an elevated train at the Dudley Street terminal in Boston for City Square, Charlestown, on July 5, 1905. After the train passed the Park Street station in the subway Mrs. McCarty became sick, and at Haymarket Square went with the guard’s permission to stand on the front platform of the car, and stood leaning over the iron gate of the car. The plaintiff, fearing that Mrs. McCarty would fall over, left her seat, went to her assistance and supported her. The plaintiff was accustomed to travelling upon the elevated trains nearly every day, and testified that the door leading upon the platform was open, as it frequently was on hot days, but there was no evidence as to when or by whom it was opened. After the train left the North Station the plaintiff described the speed of the train while going around the curve as “ terrible,” “frightful,” “greater than ever before,” “awful,” “very unusual,” “very fast,” and “it seemed the car would almost leave the track,” and that while the train was thus going around the curve she placed her hand on the casing of the door to save herself from being thrown, and while in that position the door came out of the socket and struck against her hand. The door of the car was opened and closed by hand. It had an overhead brass run, and ran on a wheel, and there was some arrangement at the bottom of the door. When the door was to be opened it was thrown back, slid along in a casing, and was caught by a spring concealed in the woodwork of the car, and was held so that ordinarily it would not release itself, but all that was needed to release it from the catch was a little pull. It was supposed “ to catch so that it could not lightly be thrown to — merely to hold it back like any door catch.” There was also some evidence tending to show that the door swayed back and forth a little for a substantial time before the plaintiff was injured. It is strongly argued that, owing to her familiarity with the route, to the several opportunities which existed for Mrs. McCarty and the plaintiff to leave the car after the former became sick and before the accident, and to the fact that she voluntarily took her place in such an exposed position as the end of an elevated car, to
Without determining this question, we pass to the discussion of the plaintiff’s contention "that the defendant was negligent by reason of the excessive speed at which the car was driven, and by reason of the closing of the car door against the fingers of the plaintiff. The Boston Elevated Railway was established and its trains are operated for the purpose of rapid transit. The place provided for passengers during their passage is inside the car. There is nothing in the evidence to show that the speed at which this car was run was excessive. The evidence upon this point is a mere accumulation of declamatory adjectives. The record is bare of any testimony showing that in the place provided for passengers anything occurred out of the ordinary. It is a matter of common observation that there are lurches in the operation of trains upon the elevated structure, and there is every probability that these are necessary in the present state of the science even in connection with the operation of the trains under the high degree of responsibility which attaches to the defendant as a common carrier. In this respect the case is well within the cases of McCann v. Boston Elevated Railway, 199 Mass. 446, Stevens v. Boston Elevated Railway, 199 Mass. 471, Foley v. Boston & Maine Railroad, 193 Mass. 332, and Weinschenk v. New York, New Haven, & Hartford Railroad, 190 Mass. 250.
There is no evidence to show what caused the door of the car to be free from the catch. That may have been as attributable to the act of a fellow passenger in opening the door for ventilation, entrance or exit, as to the act of any person for whom the defendant was responsible. Faulkner v. Boston Maine Railroad, 187 Mass. 254.
Taking all the evidence together, in the light most adverse to the defendant, it does not appear that there was any circumstance within the knowledge of the defendant or its agents reasonably calculated to excite apprehension that an injury would be occasioned to any passenger, or that it failed in any duty owed to them.
Exceptions overruled.
