James v. Boston Elevated Railway Co.

204 Mass. 158 | Mass. | 1910

Knowlton, O. J.

The questions argued by the defendant are covered in substance and legal effect by the decision in 201 Mass. 263, when this case was formerly before us, and by that in Minihan v. Boston Elevated Railway, 197 Mass. 367.

The plaintiff went to trial upon a single count, alleging negligence of the defendant and stating the nature and particulars of the accident resulting from it, but not stating the particulars of the negligence that caused the accident. Under such a count a plaintiff may rely upon the doctrine res ipso loquitur, if the accident is of a kind to indicate that it would not have happened unless there was negligence of the defendant or of some of its servants in the conduct of its business. It is not necessary to show to which of several possible culpable causes the accident is to be attributed. In this case the car ran off the track and turned around nearly at right angles to the track. There was no evidence sufficient to show particularly • the cause of the accident. Neither party offered any adequate explanation of it. Expert witnesses called by the defendant testified that sometimes it is impossible to find a cause of a derailment. Such a witness testified that he knew of nothing that would cause a car to leave the track except a defect in the track, or a defect in the car, or running the car improperly. It is said with truth that there was no evidence to warrant a finding that there was a defect in the car, treating it as a fact by itself, to be proved separately, and if the plaintiff had been obliged to prove negligence in this particular, she would have failed. If we assume without deciding that the same was true as to negligence in regard to the condition of the track and negligence in the mode of running the car, we have a case in which there is no evidence to warrant a finding of any particular kind of negligence, while the accident is such as to indicate that there was negligence in some one of these three particulars.

If the three instructions requested had been given, without more, they would have been almost equivalent to an instruction that there was no evidence upon which the plaintiff could recover. No one of them could be given properly, without coupling it with an instruction that the plaintiff was not bound to introduce evidence to warrant a finding against the defendant in any of these particulars, taken by itself alone, and that it was enough if the jury found that there was negligence in some one or more of them, even if they could only conjecture as to which one was the culpable cause of the accident. This was the legal effect of the instructions given.

At the former trial the question arose upon a count charging only negligence as to the condition of the car, under which there could not be a recovery without proof of that kind of negligence.

The defendant was not prejudiced by the judge’s reference to inspection as one of the ways in which care could be exercised.

Exceptions overruled.