222 Mass. 374 | Mass. | 1916
This is an action of tort for personal injuries, and, the plaintiff having obtained a verdict, the case is here on the defendant’s exceptions to the refusal of the trial judge to rule that “Upon all the evidence the plaintiff cannot recover;” that “There is no sufficient evidence of negligence on the part of the defendant’s motorman, and the jury are hereby directed to return a verdict for the defendant;” that “If the jury should find that the plaintiff had a firm hold of some part of the car and the lurch was of such a nature as to break such hold, such facts so found would not warrant the jury in finding specific negligence on the part of the defendant’s motorman;” that “If the jury believe and find that there was a lurch of the car of such a nature that it had no effect at all upon persons inside the car, the plaintiff cannot recover,” and to a colloquy between counsel for the plaintiff and the trial judge while the plaintiff’s evidence was being introduced.
It seems necessary to repeat what has been often stated, that the credibility of witnesses and the weight of evidence are not reviewable by this court. The principal questions for decision are whether as matter of law there was any evidence of the plaintiff’s due care, or of the defendant’s negligence.
As to the first question the jury would have been warranted in finding substantially the following facts. The plaintiff on boarding the car, having found “the place inside was thronged with folks standing having hold of those straps and hanging to the top,” stood with his back "against the door of the car that you go into off the landing” until the car from the rate of speed began to lurch when he grasped “the sill of the door . . . with both hands.” When the car was passing over the curve of a turnout it lurched so violently that “he went quick out the door down on to the turnout,” suffering severe injuries. It is conceded that he was a passenger, and even if he testified that he was familiar “with the running of cars on this particular line” the jury were to say
As to the second question, a rule of the defendant required that “The cars must be operated slowly and with special care over frogs, switches, crossovers and sharp curves,” and the motorman called by the defendant was asked in cross-examination, “You knew the rule that in coming in and out of this turnout you knew you should run your car very slowly,” replied “Yes, sir.” It is true he also said that the car ran “not any faster than four or five miles an hour.” But the plaintiff testified that the lurch was “an unusual one,” “not an ordinary lurch that threw him off” and a witness in his behalf also a passenger gave evidence, that the car “speeded up some” and was going “fast.” The fact moreover, as the jury could find, that the plaintiff “went head first out of the door,” as described by this witness, was evidence from which the inference would be warranted not only that the car was operated in violation of the rule, but also the motorman in the exercise of ordinary prudence ought to have known that the speed was so excessive that unless slackened the safety of passengers might be imperilled. The question of the defendant’s negligence also was for the jury, and all the requests were rightly denied. Sweetland v. Lynn & Boston Railroad, 177 Mass. 574, 578. Spooner v. Old Colony Street Railway, 190 Mass. 132.
Nor is reversible error shown in the conduct of the trial. The colloquy or discussion was within the discretion of the presiding judge whose common law powers of comment as to the reception or exclusion of evidence either offered or proposed has not been curtailed by statute. Whitney v. Wellesley & Boston Street Railway, 197 Mass. 495, and cases cited.
Exceptions overruled.
