182 Mass. 572 | Mass. | 1903
This is an action of tort for personal injuries received on May 17, 1901, by the plaintiff while riding in one of the defendant’s open cars in Boston. The plaintiff’s testimony tended to show that she boarded the car in Dewey Square and as it reached the side door of the South Station some shavings, sawdust and a piece of wood fell from overhead and the sawdust blew into the car and got into her eye causing the injuries complained of. On cross-examination the plaintiff testified that it seemed as though it had been thrown down after the man got through his work, and that the wind carried it into the car, but she did not know whether it was thrown down or whether it blew down, and that the same effect would have been produced if the wind had carried it down. There was a verdict for the plaintiff and the case is here on exceptions by the defendant to the refusal of the judge to rule that on all of the evidence the plaintiff was not entitled to recover.
The exceptions assume that there was an elevated structure belonging to the defendant which ran overhead at the place where the accident occurred, and the plaintiff's contention is that the shavings, sawdust and piece of wood fell in consequence of negligence on the part of the defendant, or its servants or agents while at work or engaged upon the elevated structure.
But where as in the present case it is as inferable that the accident occurred without negligence on the part of the defendant or its servants or agents as that it did, the ground for such an inference is wanting. If causes, other than the negligence of the defendant or its servants or agents, might have produced the accident, the plaintiff was bound to exclude the operation of such causes by a fair preponderance of the evidence. Kendall v. Boston, 118 Mass. 234. Searles v. Manhattan Railway, 101 N. Y. 661. Wiedmer v. New York Elevated Railroad, 114 N. Y. 462.
It cannot be held that the mere presence of sawdust and shavings and a piece of wood on the elevated structure was of itself evidence of negligence, and. there is nothing to show that if the iron flooring under the tracks had been extended beyond the sides of the tracks the falling of the sawdust would or might have been prevented. Exceptions sustained.