Seidenberg v. Eastern Massachusetts Street Railway Co.

266 Mass. 540 | Mass. | 1929

Rtjgg, C. J.

This is an action of tort to recover compensation for injuries sustained by the plaintiff while a passenger upon a trolley car operated by the defendant. One count of the two in the declaration alleged that, after entering the car and before she had opportunity to reach a seat, the car was started with a “sudden jerk and unexpected and unanticipated quick movement”; the other count alleged that there was an accumulation of snow and ice on the floor of the car. The testimony of the plaintiff was that “I had stepped out of the vestibule and the accident happened in the body of the car. The car gave a terrible jerk (describing by gesticulation, witness threw up her hands over her head backward, then said she staggered, hands being thrown forward) and I fell down. It was slippery in the car, it was wet in the car and the car gave a terrible jerk and I fell down. If it wouldn’t be so slippery, I probably wouldn’t fall down but it was so slippery I fell down . . . the floor was very wet. ... At the time of the accident I was a well woman, strong and robust, hearing and eyesight all right. ... I had no bundles in my hands at all.” Another witness testified that the condition of the floor of the car was “very sloppily wet” and that, the plaintiff having entered the car, it “started jerkily and she staggered like that (The witness was then seated in a chair. She gesticulated by throwing her hands up and quickly swaying in her chair.) and slipped right on her back. Fell right down on the floor.” There was evidence that it was not snowing at the time but had snowed before and there was slush on the ground.

There was no obligation on the part of the defendant to keep the car still until the passenger had reached a seat within the car. There was no negligence in starting the car when the passenger was fully and fairly within it. Sauvan v. Citizens’ Electric Street Railway, 197 Mass. 176. Benoit v. Boston Elevated Railway, 216 Mass. 320. There is no room for doubt on the evidence that the plaintiff was in this position.

The wetness of the floor of the car as described constituted no evidence of negligence on the part of the servants of the defendant. That point is covered by numerous decisions. Labrie v. Donham, 243 Mass. 584. O’Brien v. Boston Elevated Railway, 250 Mass. 192. O’Neill v. Boston Elevated Railway, 248 Mass. 362. Mascary v. Boston Elevated Railway, 258 Mass. 524. Bornstein v. R. H. White Co. 259 Mass. 34.

It is too well settled for discussion or for repetition of the' reasons that mere jerks and jolts in starting an electric car, however vituperatively described, do not constitute negligence. Work v. Boston Elevated Railway, 207 Mass. 447, and cases there reviewed. Saunders v. Boston Elevated Railway, 216 Mass. 355. Anderson v. Boston Elevated Railway, 220 Mass. 28. Gollis v. Eastern Massachusetts Street Railway, 254 Mass. 157. Binder v. Boston Elevated Railway, 265 Mass. 589. The graphic gesticulations of the witnesses, designed to indicate how the plaintiff fell, amounted to no more than a portrayal in words and fall within the authority of the cases just cited.

The circumstance that a passenger walking or standing within the car may fall, unaccompanied by some further physical facts showing violence in the operation of the car, is insufficient to establish negligence. McGann v. Boston Elevated Railway, 199 Mass. 446. Walsh v. Boston Elevated Railway, 256 Mass. 17, and cases there collected. Chandler v. Boston Elevated Railway, 261 Mass. 230. While the question whether there is negligence is often one of degree and each case depends upon its own facts, the case at bar falls within the general rule and is distinguishable from cases like Convery v. Eastern Massachusetts Street Railway, 252 Mass. 418, Warren v. Boston Elevated Railway, 259 Mass. 226, and Weiner v. Boston Elevated Railway, 262 Mass. 539, where there was evidence capable of conveying to the ordinary mind a definite conception of some conduct on the part of those in charge of the car outside that of ordinary experience on which a finding of negligence could rest. See Foley v. Boston & Maine Railroad, 193 Mass. 332, 335. No firm hold of the plaintiff on a strap or other part of the car was broken and she was not thrown a considerable distance or with peculiar force.

It follows from what has been said that there was no evidence to support a finding of negligence on the part of the defendant and that its request for a finding in its favor ought to have been granted.

Order dismissing report reversed.

Judgment to be entered for defendant.