Tracy v. Boston & Northern Street Railway Co.

204 Mass. 13 | Mass. | 1910

Morton, J.

The defendant does not now rely upon the exceptions taken to the admission and exclusion of evidence, having expressly waived them. It contends (1) that the court had no power to allow the amendment, and (2) that the court erred in refusing to rule as requested that upon all of the evidence the plaintiff was not entitled to recover.

1. The objection that the defendant would be deprived of the defense of the statute of limitations if the amendment was allowed was not conclusive against the power of the court to allow the amendment, but on the contrary could have been found to furnish an additional reason for allowing it. McLaughlin v. West End Street Railway, 186 Mass. 150, 151. Cogswell v. Hall, 185 Mass. 455, 456. The question whether, taking all of the circumstances into account, the plaintiff should or should not be allowed to amend was plainly for the court, and no exception lies to the exercise of its discretion. In regard to the identity of the cause of action the statute expressly provides that the allowance of an amendment by the court shall be conclusive evidence of the identity of the cause of action in the amended declaration with that for which the action was intended to be brought. R. L. c. 173, § 121. Cogswell v. Hall, 185 Mass. 455, 456. No provision is made for reviewing the action of the court in respect to the question of identity, and its decision upon that matter is final, as was formerly the case in regard to pleas in abatement. R. L. c. 173, §§ 47, 96, 106. St. 1906, c. 342, § 2. If it is necessary that the question of identity should appear to have been raised and passed upon, then it was plainly included in the objection made by the defendant to the allowance of the amendment on the ground that the cause of action set out in the amendment was different from that for which the action was originally brought, and in allowing the amendment the court necessarily must have passed upon the question of identity and have found that the cause of action was the same as that for which the action was intended to be brought.

2. The defendant does not contend that the plaintiff was not in the exercise of due care, but it contends that there was no evidence of negligence on its part. The nature of the accident was such, however, that we cannot say that the jury were not warranted in finding that it was due to negligence on the part of the defendant. There was evidence tending to show that the trouble, whatever it was, was quickly remedied, and the jury may well have thought that the defendant, in the exercise of such care as was required of it, could have prevented the accident. The jury were not bound to accept the explanation offered by the defendant, which was that the accident was caused by the blowing out of a fuse. Further, they may have thought, and if they did we cannot say that they were wrong, that, if the accident was caused by the blowing out of a fuse, it was negligence on the part of the defendant to use fuses that in blowing out were liable to produce results like those testified to. A fuse in its ordinary operation is not expected to blow out with fire and smoke and to cause a .car to jump so as to throw passengers from their seats, which there was evidence warranting a finding was what happened here. See Cassady v. Old Colony Street Railway, 184 Mass. 156.

Exceptions overruled.