Kingman v. Lynn & Boston Railroad, 181 Mass. 387

Kingman v. Lynn & Boston Railroad

181 Mass. 387 | Mass. | 1902

Barker, J.

After a verdict for the plaintiff the case is here upon the defendant’s exceptions.

I. The first three exceptions are to the admission of the testimony of the plaintiff and two other passengers, present at the accident, that the ring in which the plaintiff testified that she caught her foot was standing erect immediately after the accident and was then pushed down by another passenger with an umbrella, and that repeatedly thereafter the same ring whenever the car started after a stop rose and remained upright until pushed down by some passenger or by the conductor.

The evidence was competent. There was no reason to infer that anything about the car was different at the time to which the testimony referred from what it had been when the car left the barn after its morning inspection. If during the time testified to the ring rose frequently as the car started and remained up until pushed down this tended to show that it had been doing the like since its use on that day began.

Knowingly to use a car in that condition was negligence on the part of the carrier, and the evidence was competent to show that the car had been in fact in that condition for so long a time before the plaintiff became a passenger that the defendant should be charged with knowledge of the dangerous condition, or with negligence on the part of the conductor in not ascertaining the danger.

2. The fourth exception is to the refusal to strike out all the *392testimony of the ex-conductor called in rebuttal. It is not contended that his evidence upon direct examination was incompetent, but that his whole testimony shows that he was speaking of occasional occurrences only and not of a general or ruling practice. The court was right in ruling that the testimony was inconsistent with itself, and in leaving the jury to deal with it in view of the inconsistency.

8. As above stated, in the testimony of the first three witnesses as to the action of the ring at the time of and immediately after the accident there was evidence which would warrant the jury in finding that the defendant and its servants were negligent. However reputable the builder from whom the car had been bought, and however usual the particular device of the ring, if the device was allowed to get into and remain in a condition which usually raised it when the car started, it was negligence not to discover and remedy that condition.

Exceptions overruled.