194 Mass. 337 | Mass. | 1907
These actions of tort for personal injuries were tried together. The respective plaintiffs were passengers upon one of the defendant’s open cars, which was proceeding northerly on the inbound track on Dorchester Avenue towards Boston; and the injuries were received when this car, between First and Second Streets, met a box car also belonging to the. defendant, going in an opposite direction on the outward bound track. At the time the cars were passing each other Sanderson was knocked from the left hand running board of the open car, and Atchison, who was also standing upon the same board, was knocked off by collision with Sanderson as the latter fell.
Sanderson testified in substance that his destination was a coal office just north of First Street; that he was familiar with that line of cars; that he knew that the cars stopped only at white posts, and that there was no white post directly opposite the office; that he intended to alight from the car at the white post just north of First Street; that as the car passed Second Street the conductor called out First Street as the next stop; that thereupon he signalled the conductor to stop, and that just before the car came to First Street it “ slowed down.”
He testified that he had with him a package consisting of a ledger and papers, and some writing material, which during the ride he had placed between his back and the seat. He was seated at the extreme left end of the second seat from the rear of the car. The car was crowded, passengers being upon the rear platform and on each of the. running boards. As to the manner of the accident he testified as follows: “ As soon as I saw that the car was coming to a stop, I reached for the seat
The plaintiff Atchison testified that when he boarded the car he stood at first upon the right hand running board, but as the car proceeded and the passengers changed, he gradually worked around over the rear platform to the left hand running board, near the rear seat, where at the time of the accident he was standing; that he did not know Sanderson, and that the first he noticed was when the latter “ shot up ” his hand; that after the hand shot up the car “ slowed down.” He then continued: “ After his [Sanderson’s] hand shot up I noticed he had a paper,
One of the witnesses for the plaintiff described the movement of the car as a “ kind of a lurch,” another as a “ jar ahead to a considerable extent,” “ a movement such as you feel when the power is applied ”; another, when asked how severe the forward motion of the car was, answered: “Well, I couldn’t state how severe it was, simply that I bumped into the man behind me, and he came back on to me. . . . He came back good.” There were quite a number of people upon each of the running boards, especially that upon the right; but while some testified that they were thrown back a little it did not appear that the movement was so great as to shake any of them off.
It is to be noted that the theory of the defence as to the way in which Sanderson was thrown from the car was entirely different, and there was evidence that there was no jerk of the car; but since the evidence was conflicting we are to treat the case
Even if the plaintiffs’ theory of the accident be adopted, the evidence discloses no negligence of the defendant. There does not appear to have been any evidence of defect in the car or tracks, or of incompetency of the defendant’s servants. The car was moving slowly. The plaintiffs were not hurt by any movement of the car at the time and place when and where the defendant was ready to discharge passengers. Sanderson knew that the alighting place was not reached, and that the car would not stop until it reached there. He was accustomed to ride upon the electric cars and was familiar with their operation. There may be movements of a car so severe that a mere description of them and their results may justify the inference that they were attributable to some negligence on the part of the carrier, but the movement described in this case is not of that character. It was not due to any defect, and the possibility of such a movement is a thing which every one who gets upon a street car must be taken to contemplate. See Mc Cauley v. Springfield Street Railway, 169 Mass. 301. The case must stand with cases like Byron v. Lynn & Boston Railroad, 177 Mass. 303, and Timms v. Old Colony Street Railway, 183 Mass. 193.
Atchison’s case must fall with Sanderson’s.
Exceptions in each case overruled.