| Mass. | Oct 21, 1909
These are two actions of tort brought for injuries suffered by the plaintiff in the first action while she was trying to board one of the defendant’s cars. The second action is brought by her husband, and is founded on the same accident. We shall speak of Mrs. Payne, the plaintiff in the first action, as the plaintiff.
The plaintiff’s case was that as the car in question approached a white post on Main Street in Springfield, where she with a companion was waiting for a car, she stepped into the street and signalled to the motorraan by putting up her hand; that “ she saw the motorman look right down at her like that (indicating) and shake his head ”; that after that the car slowed down and stopped; that when it stopped the rear of it was ten or twelve feet beyond the white post; that she and her companion followed up behind, walking diagonally across the street; that she un
The defendant’s case was that the plaintiff did not signal the car by holding up her hand for the motorman or otherwise; that the car came to a stop because a car, or cars, ahead of it were brought to a standstill for some two minutes, by a car in front crossing the track at right angles, to go down Main Street in the opposite direction ; that while the car which the plaintiff undertook to board was waiting for a clear track, some two or three people got on and the plaintiff came up from behind to get on also; that the car then started, and after it had started she grabbed the handles, tried to board the car and was thrown down; that the injuries which this caused were slight; that she had not in fact become paralyzed and lost the sense of smell, taste, sight and hearing, but thought she had; or, as one of the witnesses for the defendant put it, she had hysteria, a suggestive disease; that a person who has hysteria, on being examined and an injury or trouble suggested, assumes that trouble.
It appeared that at the time here in question the conductor was taking fares in the forward part of the car, and on hearing two bells from the motorman indicating that the track was clear, called out “ All right ? ” and on some one’s answering “ All right,” rang the bell for the car to start.
The presiding judge instructed the jury that a person does not become a passenger when he signals the car, nor when he is crossing from the sidewalk to take it; that the company has not accepted him then, but that when for the purpose he goes toward it (after it has stopped at a regular stopping place for the receipt of passengers) and takes hold of it and comes in contact with it in the process of entering it, then at least he is a passenger; that if the jury believed the evidence introduced by the plaintiff they could find that the plaintiff had become a passenger.
Later the jury came in for further instructions and submitted the following question to the presiding judge: “ ‘ What constitutes becoming a passenger, with regard to taking hold of the handles?’ meaning of the car.” To this the judge gave this instruction, “ Gentlemen, the Supreme Court has recently answered that question, and I had purposed in the charge to read the answer but I overlooked it. The court recently said this: ‘ We are unwilling to go farther than the doctrine stated in Davey v. Greenfield & Turners Falls Street Railway, 177 Mass. 106" court="Mass." date_filed="1900-10-19" href="https://app.midpage.ai/document/davey-v-greenfield--turners-falls-street-railway-co-6427233?utm_source=webapp" opinion_id="6427233">177 Mass. 106, that when there has been an invitation on the part of the carrier by stopping for the reception of a passenger any person actually taking hold of the car and beginning to enter it is a passenger.’
1. The instructions given were deficient in not telling the jury that if they believed that the plaintiff undertook to seize the grab handles after the car started and without her having been seen either by the motorman or the conductor, she was not a passenger. If the defendant had taken an exception to this portion of the charge it would have had to be sustained. But the defendant did not do so. The statement of the exceptions taken by the defendant is in these words: “ The court declined to give such requests or any of them or to so rule except as set forth in the charge to the jury hereto annexed, to all of which rulings and refusals to rule, as requested, and to all rulings inconsistent with said requests, the defendant excepted, [and] now excepts.” The defendant asked for eighteen rulings, which are set forth in the bill of exceptions.
The only questions before us therefore are whether the judge was wrong in refusing to give the rulings asked for and whether the error made in the charge is covered by any of these rulings. The defendant contends that the sixth, seventh, eighth, thirteenth, fourteenth, fifteenth and sixteenth rulings asked for should have been given, and that the error in the charge was fairly covered by them.
The sixth, seventh and eighth requests do not cover the point and were rightly refused. They deal with the withdrawal of an invitation which has been held out by the carrier. The defendant’s case was that no invitation had been given to the plaintiff to become a passenger because the car was stopped for other purposes, and that the plaintiff was not seen either by the conductor or by the motorman. In such a case the question is not the question of the withdrawal of an invitation which had been extended.
The thirteenth ruling asked for does not cover the point and was properly refused. The case at bar is not a case which turned on the car’s having started or not just before or just after the plaintiff seized the grab irons. But it turned on the fact of an invitation’s having been or not having been extended to the plaintiff. To have given the thirteenth ruling asked for (if correct)
The defendant contends that the sixteenth ruling and the ruling numbered fifteen in the action brought by Annie Payne, and the second ruling numbered fifteen in the action brought by Peter Payne, cover the point and should have been given. But the difficulty with those rulings is that they do not exclude the motorman’s having seen the plaintiff. Those rulings would have had to be given had the defendant inserted the words “ without the motorman’s having seen her.”
2. The defendant asked the judge to instruct the jury “ that for a woman such as this plaintiff encumbered with bundles as was this woman to attempt to board a moving car is lack of due care as a matter of law.” The same ruling was asked for in the first request numbered fifteen in the action brought by Peter Payne and in that numbered fourteen in the action brought by Annie Payne. If the car was just starting and was barely moving, we do not think attempting to board it is negligent as matter of law. In Marshall v. Boston Elevated Railway, 203 Mass. 40" court="Mass." date_filed="1909-06-24" href="https://app.midpage.ai/document/marshall-v-boston-elevated-railway-co-6430762?utm_source=webapp" opinion_id="6430762">203 Mass. 40, and in Block v. Worcester, 186 Mass. 526" court="Mass." date_filed="1904-10-18" href="https://app.midpage.ai/document/block-v-city-of-worcester-6428693?utm_source=webapp" opinion_id="6428693">186 Mass. 526, where the car had not come to a stop, it was held to be for the jury to say whether the plaintiff had been guilty of negligence which contributed to the injury.
3. The last exception is to the action of the presiding judge in striking out the testimony of Dr. Downey. Dr. Downey, who was called by the defendant, testified that he treated the plaintiff professionally six years before the accident, during pregnancy and over her confinement; “ that at that time she was a highly nervous neurotic woman ”; and “ that she had a severe uterine condition.” He gave it as his opinion that the plaintiff was suffering from hysteria; “ that hysteria is a disease of suggestions, a suggestive disease, and every time a patient is examined or an injury or trouble suggested to them they may, without being conscious of it, assume that trouble.” He also testified “that heredity plays a part in the matter of hysteria; heredity is a condition of organism or otherwise that is transmitted from father or other parents to their offspring ; that a father or mother who has, possibly, hysteria or any of the neurotic diseases are liable to be seen in some
It is apparent from his cross-examination that the opinion expressed by Dr. Downey on his direct testimony was not based upon the facts of the case at bar. Apart from that the fact that two or possibly three out of ten children had become in middle age nervous might well be found by the presiding judge to be too remote from the issue on trial, to wit: Had the plaintiff in fact become paralyzed and lost the sense of smell, taste, sight and hearing, or did she merely think she had ?
jExceptions overruled.
Duchemin v. Boston Elevated Railway, 186 Mass. 353" court="Mass." date_filed="1904-09-07" href="https://app.midpage.ai/document/duchemin-v-boston-elevated-railway-co-6428649?utm_source=webapp" opinion_id="6428649">186 Mass. 353, 357.