Larson v. Boston Elevated Railway Co.

212 Mass. 262 | Mass. | 1912

Sheldon, J.

The jury had a right to find that the female plaintiff was in the exercise of due care and had not assumed the risk of the accident which happened. The fact that she had left her seat and walked to the door of the car as it approached the station was not decisive against her. Barden v. Boston, Clinton & Fitchburg Railroad, 121 Mass. 426. Worthen v. Grand Trunk Railway, 125 Mass. 99. Her putting her hand upon the door was an involuntary act done to steady herself when the lurch of the car threw her against the door. This presented a question for the jury.

There was also evidence of negligence on the part of the defendant. It is not claimed that the lurch of the car, however violent and unexpected, constituted such negligence; but the jury might find that it should have operated as a warning to the defendant’s servant in charge of the door that passengers who had come or were coining to it for the purpose of leaving the car might be thrown against it and involuntarily might seize any support within their reach. If the person so in charge was the brakeman at the rear of the car, as reasonably might have been inferred, the argument in favor of the plaintiff was strengthened. McGlinchy v. Boston Elevated Railway, 206 Mass. 7. The reasoning in that case is closely applicable to the case at bar.

The admission in evidence of the defendant’s rules 91 and' 99 was excepted to. That part of rule 91 which states that “passengers should be induced to leave car by the side doors” was plainly competent. It tended to show the necessity of care in opening the door in question, by which, passengers were expected to go out. Nor was the rest of the rule clearly inapplicable to the case presented, especially as the exceptions do not show at what stage of the trial the rules were offered and admitted. Crowley v. Boston Elevated Railway, 204 Mass. 241, 246. Only the second paragraph of rule 99 was admitted. This was not incompetent for similar reasons. Both of these rules on their face applied to all the doors of the car.

The testimony as to oral instructions or directions given by the defendant to its servants as to the operation of the doors was admitted without exception, and it is not necessary to consider the question which was left undecided in Crowley v. Boston Elevated Railway, ubi swpra. It was perhaps intimated in Lindenbaum v. New York, New Haven, & Hartford Railroad, 197 Mass. 314, 324, that published rules might be modified by oral instructions; but the question whether the doctrine of Stevens v. Boston Elevated Railway, 184 Mass. 476, firmly settled as it now is in our decisions, should be extended to cover all oral instructions given by a superior officer or an instructor to an inferior servant, has not been passed upon by the court, and is not now presented.

We cannot say that Pasho’s testimony on cross-examination and on his re-direct examination had as matter of law the effect of annulling his testimony as to the oral instructions about which he testified. It was for the jury to settle the fact. Cameron v. New England Telephone & Telegraph Co. 182 Mass. 310. Tupper v. Boston Elevated Railway, 204 Mass. 251. The jury could believe his earlier rather than his later statements. He was not allowed to say what doors or what cases the rules in evidence were intended to cover. This was right. The rules were not ambiguous, and spoke for themselves. Any oral modifications or explanations of the rules given to the operators were not excluded.

It was not wrong to admit the hypothetical question put to Dr. Hawes. The question could properly include what material facts the counsel deemed to be proved or expected to be proved, and need not include others. It would be for the jury to say what facts were proved. Hunt v. Lowell Gas Light Co. 8 Allen, 169. McCarthy v. Boston Duck Co. 165 Mass. 165, 166. Burnside v. Everett, 186 Mass. 4, 6.

If the plaintiff’s tuberculosis had been directly caused by this accident, it would of course have been an element of damages. So, if it were induced without any other intervening cause by her weakened condition or her loss of blood, itself directly caused by the accident, the same would be true. And if at the time of her injuries there were germs of tuberculosis in her system, and if the direct consequence of her injuries was to lessen her general health and cause weakness and reduce her power of resistance to the toxic effect of these germs, and if solely by reason thereof the tuberculosis which had been merely latent in her system became developed into an existing disease, as on the evidence the jury were warranted in finding, they would then have a right to find that the tuberculosis was a direct and immediate result of her injuries and to assess damages therefor. Coleman v. New York & New Haven Railroad, 106 Mass. 160, 178. Derry v. Flitner, 118 Mass. 131, 133. McGarrahan v. New York, New Haven, & Hartford Railroad, 171 Mass. 211. Rooney v. New York, New Haven, & Hartford Railroad, 173 Mass. 222. Sullivan v. Boston Elevated Railway, 185 Mass. 602. Weber v. Third Avenue Railroad, 12 App. Div. (N. Y.) 512. Dickson v. Hollister, 123 Penn. St. 421. Baltimore City Passenger Railway v. Kemp, 61 Md. 74. Beauchamp v. Saginaw Mining Co. 50 Mich. 163. Louisville & Nashville Railroad v. Jones, 83 Ala. 376. Louisville, New Albany & Chicago Railway v. Falvey, 104 Ind. 409, 426. Seckinger v. Philibert & Johanning Manuf. Co. 129 Mo. 590. Neff v. Cameron, 213 Mo. 350, 365. Ross v. Great Northern Railway, 101 Minn. 122. People’s Railway v. Baldwin, 7 Pennewill (Del.) 383. Crane Elevator Co. v. Lippert, 63 Fed. Rep. 942. If, however, her tuberculosis came from germs introduced into her system after she had sustained these injuries, or by the operatian of some other subsequent and independent cause, then, even though the disease would not have developed and manifested itself but for her physical condition having been weakened and her power of resistance diminished by those injuries, it well may be that she could recover no damages for that sickness and its consequences. Raymond v. Haverhill, 168 Mass. 382. Snow v. New York, New Haven, & Hartford Railroad, 185 Mass. 321. Scheffer v. Railroad, 105 U. S. 249. But no such claim as that last suggested was made here. The defendant’s contention was and is that the evidence as' to tuberculosis was wrongly admitted and that no damages should be allowed by reason thereof; and that contention cannot be sustained. The judge clearly and plainly instructed the jury to allow, no such damages unless they were satisfied that the tuberculosis was the direct and immediate result of the plaintiff’s original injuries. As to this, the defendant’s only exception was to the refusal of the instructions for which it asked. These requests, so far as not given, were properly refused.

The other exceptions either have been waived or require no discussion.

Exceptions overruled.