Mullin v. Boston Elevated Railway Co.

185 Mass. 522 | Mass. | 1904

Morton, J.

These two actions were tried and argued together. The first is an action by the female plaintiff, whom we shall speak of as the plaintiff, for injuries alleged to have been sustained while a passenger on one of the defendant’s open cars in July, 1900. The second is by the husband for the loss of services. The cases were tried by the judge without a jury, and the judge found for the defendant in each case. It was admitted that the plaintiff was in the exercise of due care. The cases are here on exceptions by the plaintiffs to certain rulings in regard to the admission of evidence, and to the refusal to adopt certain instructions that were requested. We think that the rulings were right.

The plaintiff was seated in the car so that she faced towards the rear. There had been a rain and the tracks were somewhat wet and slippery. Another car approached on the same tracks from the rear, and “by reason,” as the judge found, “of the moisture on the rails, notwithstanding all reasonable and proper efforts used by the motorman in charge of the last car in applying the brakes and reversing the power, the car slid on the rails, and . . . the fender . . . came in contact with the fender of the car in which the plaintiff was seated.” The judge further found as follows: “ The force of the impact did not cause any injury to the fender or woodwork of either car; neither were any other passengers, so far as the evidence showed, affected by such impact beyond the sensation of a jar on the part of those who were seated in the car with the plaintiff. The plaintiff, a person whose health had been somewhat impaired by previous nervous difficulties, disclosed by the evidence, seeing the car approaching and anticipating that there would be a collision . . . reached out her right hand, took hold of the stanchion at the end of the seat, swooned and fell to the floor of the car. Such fall was not caused by the impact of the cars, but" was the result of her fainting at the anticipated collision, the fainting fit being caused by nervous fright.” The judge also found that as a result of the fall she sustained certain bruises of a superficial nature and thereafter suffered serious nervous prostration caused by the shock and the nervous fright. In view of these findings which were warranted by the evidence we do not see how it can be said that there was negligence on the part of the defendant. Whether, if there was, it could be said that the plaintiff’s injuries were due to it, need not be considered. See Warren v. Boston & Maine Railroad, 163 Mass. 484; Spade v. Lynn & Boston Railroad, 168 Mass. 285 ; Gannon v. New York, New Haven, & Hartford Railroad, 173 Mass. 40; Berard v. Boston & Albany Railroad, 177 Mass. 179; Homans v. Boston Elevated Railway, 180 Mass. 436 ; Cameron v. New England Telephone & Telegraph Co. 182 Mass. 310. The plaintiff relies on a statement by the motorman made during the course of his cross-examination that he took the risk. But it was for the presiding judge to say what he meant by that statement and whether under the circumstances it was negligent for him to take the risk, and the result of the finding of the judge is that it was not.

The evidence that three years before the accident the plaintiff was subject to fainting spells was competent to contradict her statement that she had never been subject to fainting fits before the accident, and as furnishing some ground for questioning the truth of her claim that the fainting fits to which she testified that she was subject were caused by the accident.

Quite a number of the passengers on the car with the plaintiff were called as witnesses by the plaintiff and the defendant, and against the objection of the plaintiff the defendant was allowed to show by them that none of them received any injury as a result of the collision, and it did not appear that any person besides the plaintiff was injured. The force with which the cars came together had a bearing upon the question of the alleged negligence of the motorman. One way of judging of the force was by its effect upon the cars and passengers, and it was competent for the defendant to show not only that no injury was done to the cars, but to inquire of the passengers who were witnesses whether any of them received any injury. If none of them did, that fact would have an important bearing on the force with which the cars came together, and on the motorman’s alleged negligence.

If the questions that were allowed to be put to the witness who had been the attending physician of the plaintiff whether he got from the plaintiff or from any one else in her presence any of her family history concerning her mother’s physical condition or mental or nervous condition and her sisters were improperly admitted, on which we express no opinion, nevertheless no harm was done as the witness answered that he never did. See Thompson v. Cashman, 181 Mass. 36.

We have considered the exceptions so far as relied on by the plaintiffs in their brief and we treat the others as waived. The result is that the exceptions must be overruled.

So ordered.