Killam v. Wellesley & Boston Street Railway Co.

214 Mass. 283 | Mass. | 1913

Rugg, C. J.

There was evidence tending to show that the plaintiff attempted to board a car of the defendant after it had stopped at a regular stopping place, and that while she was in the act of stepping from the running board into the car it started in the usual way as it ordinarily did and continued on its course, whereby she was injured. In answer to the question, “Did you hear any bells given to start the car?” the plaintiff testified, “I don’t remember. All I know is the car started.” This was equivalent to no evidence that the car started by reason of a signal given by starting bells. Slattery v. New York, New Haven, & Hartford Railroad, 203 Mass. 453, 457.

Where a car in ordinary operation, which has stopped to receive passengers at a regular place, starts in the usual way before one offering himself as a passenger has had an opportunity to reach a place of safety within the car, the inference may be drawn that it started by reason of acts of the servant or servants of the defendant. ■ The defendant cannot be held liable for the act of an intermeddler in causing the car to start. If, without any express or implied authority, a stranger gives the starting bells, and his act is not adopted by the conductor, the defendant is not liable.

But on the other hand when a car starts apparently in the ordinary course of its operation and there is nothing to indicate that starting bells were given by the unauthorized act of a volunteer, the inference may be drawn that it starts by, or by the authority of, those in charge of the car. McDermott v. Boston Elevated Railway, 208 Mass. 104.

There is nothing contrary to this in O’Neil v. Lynn & Boston Railroad, 180 Mass. 576. In that case it appears from an examination of the original papers that there was strong evidence that the conductor did not give the starting bells and that the plaintiff did not put her case ón the ground of presumption but chiefly relied on the negligence of the defendant in suffering the car to be started by others, and contended further that there was enough evidence to go to the jury on the point that the conductor gave the starting bells. The declaration alleged as negligence only the untimely starting of the car. The opinion was addressed to the argument of the plaintiff and the narrow allegations of the declaration. Torrey v. Boston Elevated Railway, 209 Mass. 43, relied on by the defendant, was decided rightly on the well settled principle that a general exception to a charge to a jury without further specification cannot be sustained. D’Arcy v. Mooshkin, 183 Mass. 382. Savage v. Marlborough Street Railway, 186 Mass. 203. The opinion is brief and does not allude to this ground. So far as it is susceptible of the construction, that in general and in the absence of controlling evidence or circumstances the inference may not be drawn that when an electric car starts apparently in the usual conduct of the carrier’s business such starting is due to its servants in charge of the car, it is not in harmony with McDermott v. Boston Elevated Railway, 208 Mass. 104, and cases there cited. It must be treated hereafter to that extent as not stating the law.

In the case at bar the inference might have been drawn from all the evidence that the proximate cause of the starting of the car was the act of some servant of the defendant. The present declaration charges negligence in broad terms and does not restrict the probative effect of the evidence.

It could not have been ruled as matter of law that the plaintiff had reached a secure position before the car started. Whether she had or had not was a question of fact. Gordon v. West End Street Railway, 175 Mass. 181. Lockwood v. Boston Elevated Railway, 200 Mass. 537, 542.

Exceptions overruled.