224 Mass. 405 | Mass. | 1916
This is an action of tort to recover for personal injuries received by the plaintiff while a passenger on one of the defendant’s prepayment cars. On direct examination, she testi
Here is not an instance of more or less conflicting or inconsistent statements made in the course of an examination, where it is for the jury to say what the truth is, as in Larson v. Boston Elevated Railway, 212 Mass. 262, 268, and cases there collected and numerous similar cases. That is the general rule. A skillful cross-examiner, by pushing a witness to extremes and imposing upon a dull or wearied intellect, ought not to be permitted to secure an undue advantage. But there are occasions where a witness, having made two materially different statements touching the same event, • finally adheres definitely to one in preference to the other as being the truth. Under such circumstances the witness is bound by the statement at last given as the truth. This case belongs to that
Even if that statement be taken as the utmost limit of evidence bearing on the negligence of the defendant’s servants in charge and control of the car, there was still enough to make that question one of fact. There was other evidence that the plaintiff was thrown with force against the money box of the car as it backed and that “it seemed only a second when it lurched forward again.” It has been decided in numerous cases that the ordinary lurches and jerks of a car, unaccompanied by evidence conveying a definite impression of specific physical facts, even though described with violent epithets, do not indicate negligence of those operating the car. See Work v. Boston Elevated Railway, 207 Mass. 447; Martin v. Boston Elevated Railway, 216 Mass. 361; Foley v. Boston & Maine Railroad, 193 Mass. 332; Anderson v. Boston Elevated Railway, 220 Mass. 28. That proposition is too well established to be open to discussion.
But it is not the ordinary course of operation for an electric car to go suddenly backward for a considerable distance just as passengers have entered it, and then without a substantial interval of time to go forward with such violence of action as to throw a passenger with each of these two motions against parts of the car. This diversity of opposite impetus of such force as to throw the ordinary passenger off his balance is so far contrary to common experience as to warrant an inference of negligence in management of the car.
Exceptions sustained.