190 Mass. 563 | Mass. | 1906
1. The complaints of the deceased as to pain were rightly admitted. They do not appear to have been a narration of past pain, but only such exclamations or expressions as usually and naturally accompany and manifest the existence of present pain. Bacon v. Charlton, 7 Cush. 581. Hatch v. Fuller, 131 Mass. 574. Cashin v. New York, New Haven, & Hartford Railroad, 185 Mass. 543. The same consideration disposes of the exceptions to the evidence that the deceased in riding one day in her own carriage from the doctor’s office to her house “spoke about how hard it rode,” and said that “it seemed as though her carriage never rode so hard before.” This may well be regarded as an expression and indication of then present pain or weakness.
2. After a daughter of the deceased had testified to a conversation with her mother, in which the latter described the accident, another daughter was allowed to testify to a similar conversation with her mother. To the admission of this last conversation the defendant objected upon the ground that St. 1898, c. 535, now R. L. c. 175, § 66, under which the evidence was admitted, did not contemplate that more than one state
8. The facts as to the circumstances of the accident are not much in dispute. The plaintiff’s intestate, Mrs. Glidden, with her sister, Mrs. McLaughlin, signalled for the car to stop. It stopped, and when the former had entered the car and proceeded up the passageway five or six feet, and while the latter was still upon the platform, the car started. The evidence warranted a finding that the conductor, who was standing upon the rear platform with both women in full view, gave the signal for the car to start; that it suddenly started with a violent and unusual jerk, by which Mrs. Glidden, who was still standing, was thrown over backwards upon the floor of the car and injured. There were several passengers in the car, and it does not appear that it was necessary for the plaintiff’s intestate to go so far into the car before taking a seat ; but the jury may have properly found that in proceeding towards the front of the car she was exercising ordinary care even if she did pass an empty seat which she could have taken. Upon this branch of the case the instructions were sufficiently favorable to the defendant.
It is argued by the plaintiff that the conductor was negligent. In considering this question it is to be noted that we are to consider his duty, not to Mrs. McLaughlin who was still upon the step, but to the plaintiff’s intestate who was well inside the car. The latter is described as a strong, healthy woman at the time, between fifty-eight and sixty years of age, showing no sign of physical or mental infirmity, and the conductor had no reason to suppose, and there was no reason to suppose, that she was other than an ordinarily careful and capable passenger. As to her we do not think that the conductor can be said to have been negligent. The woman was well inside the car, was proceeding to her seat in the usual way, and we
One of the grounds of complaint was that the conductor was negligent by giving too soon the signal to start, and the case went to the jury authorizing them to find for the plaintiff if they found the conductor negligent in that respect. For ought that appears the verdict for the plaintiff may have been rendered upon that ground. Under the circumstances, the failure to give the second and third requests was error prejudicial to the defendant.
Exceptions sustained.
