320 Mass. 339 | Mass. | 1946
This is an action for personal injury suffered by the plaintiff while a passenger in one of the defendants’ trains within the limits of New York city on August 28, 1943. The trial judge directed a verdict for the defendants on each count. The plaintiff excepts.
Although the accident occurred within the State of New York, it does not appear that the law of New York was in
The plaintiff having occasion to pass from one car to the next, while going through the vestibules, caught his foot in some manner between certain of the attachments pertaining to the two cars at the point of junction between them. The train had come from Portland, Maine, and had been operated by the Boston and Maine Railroad as far as Worcester in this Commonwealth, where it was taken over by the defendants. The plaintiff boarded the train at Worcester at 2:15 a.m. It was due in New York about 7:30. The accident occurred as the train was nearing the 125th Street station, where it came to a stop. When it started up again the pull upon the coupling released the plaintiff's foot. Evidence in behalf of the defendants tended to show that both of the cars involved belonged to the Boston and Maine Railroad, but the plaintiff was not bound by this. There was, however, no other evidence as to the ownership of either car.
There was evidence from both sides as to the nature of the coupling mechanism. In general "this evidence tended to show that the draw bars which actually pull the cars are located under the vestibules and are so constructed as to permit them, even when connected together, to move slightly forward and backward to relieve strain in starting and stopping and at other times. Above the draw bars are the buffer plates, one attached to each car. These have a vertical face and a horizontal or flat top. These also are free to move together backward and forward to a certain extent, but the vertical faces are always kept in close contact byfmeans of springs which maintain a constant horizontal tension, so . that if the draw bars are stretched out the buffer plates will nevertheless remain in contact, and
At the trial the evidence was conflicting as to where the plaintiff’s foot was caught. The defendants’ evidence tended to show that the foot was caught between the edges of the cover plates above the top surfaces of the buffer plates. The defendants’ evidence also tended to show that with all the mechanism in normal condition and working properly, the edges of the cover plates might in the course of the movements of the train assume a distance apart in which it would be possible for them to catch and hold the shoe of a passer-by if the foot were turned sidewise. The plaintiff testified that his foot was squeezed and twisted. If the jury had believed that the plaintiff was caught between the cover plates, we think there was no evidence from which they could have found that there was any defect in either car or that the defendants were negligent. It is true that they could find that in some circumstances there was some danger from the cover plates, but there was no evidence that the mechanism was out of order, or that it was not the type in common use, or that any safer mechanism was in use anywhere or had been devised for guarding passengers from the consequences of the inevitable jostling, of one car against
But there was evidence in the somewhat confused testimony of one of the plaintiff’s witnesses, which, if believed, would have tended to show that the buffer plates had become separated, and that the plaintiff’s foot was actually caught between the buffer plates and not between the cover plates. This witness testified that he could see clear down between the cars and could see a portion of the draw bars and the roadbed below. With the probability of this we are not concerned. The jury could have found that separation of the buffer plates in this way was not consistent with the proper operation of the mechanism and created a serious and unnecessary risk. We think they could also have found that such a thing was not likely to occur without negligence in the construction, repair, or inspection of the cars. We think the case is to be classed with those in which it has been stated or held that an unexplained coming of a wheel off a coach (Ware v. Gay, 11 Pick. 106), fall of a lamp shade from the top of a car (White v. Boston & Albany Railroad, 144 Mass. 404), breaking apart of a train (Thyng v. Fitchburg Railroad, 156 Mass. 13, 19), breaking of a piece of iron from a guy wire (Uggla v. West End Street Railway, 160 Mass. 351), slipping of.one draw bar past the other (Bowers v. Connecticut River Railroad, 162 Mass. 312, 318), bending of an iron bar, part of a coupling apparatus (Magee v. New York, New Haven & Hartford Railroad, 195 Mass. 111), collision of cars (Savage v. Marlborough Street Railway, 186
The trial judge took the position that even if there was a defect there was no evidence that it had existed long enough to charge the defendants with negligence. This principle, of course, has frequent application in cases where the defect is such that its mere existence has no tendency to prove that the defendant was negligent in respect to it. The so called “banana peel” cases, such as Goddard v. Boston & Maine Railroad, 179 Mass. 52, are classical illustrations. But where the instrumentality involved is in the exclusive control of the defendant at the time of the injury and the defect is of such nature that its mere existence can reasonably be thought more likely to be due to the negligence of the defendant than to some other cause, then by hypothesis a case for the jury is made out without carrying the actual proof beyond the existence of the defect causing injury to the plaintiff. Carroll v. Boston Elevated Railway, 200 Mass. 527, 534-536. Fitzmaurice v. Boston, Revere Beach & Lynn Railroad, 256 Mass. 217, 220. Roscigno v. Colonial Beacon Oil Co. 294 Mass. 234.
The judge may «have relied upon the absence of evidence that the cars belonged to the defendants and the shortness of the time during which they were proved to have been
Exceptions sustained.
