354 Mass. 99 | Mass. | 1968
The plaintiffs in this action of tort for personal injuries to the minor plaintiff (hereinafter the plaintiff) and his father’s consequential damages present exceptions to the direction of verdicts for the defendant. The jury could have found that the plaintiff, a sophomore student at English High School, Boston, on May 14, 1962, at the
The bus proceeded without stopping to the Dudley Street station, lower level, where it made a turn and stopped “suddenly and abruptly” witMn the station and not at the usual stopping place. The plaintiff did not expect and had no reason to expect such a stop. It caused Mm to lose Ms grip on the stancMon. He was thrown forward and as the bus settled back, he was tMown toward the stairwell. The other standing student passengers were similarly thrown. In order to protect Mmself, after losing his grip and to avoid falling down the stairwell and onto the boy below Mm, the plaintiff instinctively put Ms hand up and out for support. As he did so, the doors of the bus suddenly opened and Ms hand was caught in the exposed moving mechamsm. The plaintiff testified that he was not pushed by other passengers and that everyone was thrown by the movements of the bus.
The report of an auditor whose findings were not final was read to the jury with the exception of a paragraph relating to damages. There were findings that the bus did make a sudden and unexpected stop, that the opemng of the doors “was in some way responsible” for the injury, and that the defendant was not negligent.
In the view of a majority of the court, it was error to direct verdicts. As the sudden stop was in the defendant’s reservation the plaintiff to recover did not have to show
A sudden stop sufficient to break a firm grip has been ruled sufficient to support a finding of negligence. McRae v. Boston Elev. Ry. 276 Mass. 82, 83-84, and cases cited. Johnson v. Berkshire St. Ry. 292 Mass. 311, 312-313.
The many cases as to sudden stops are not all easily reconciled. It is a question of degree in each case. Mathieu v. Springfield St. Ry. 328 Mass. 13, 14. But there was further evidence of negligence. The jury could find that the absence of the metal cover was visible on reasonable inspectian. The bus was loaded and sent off by a starter. Injury from the operation of the exposed mechanism, within the easy reach of standing passengers, was a foreseeable risk of filling the bus as this one was filled and crowding standees in close proximity to the doors. Also the jury could have found that the operator should have had knowledge of the condition by his own inspection or by information from another who inspected the bus and should not have opened the doors immediately after the sudden stop and before passengers could recover equilibrium. Compare Power v. Boston Elev. Ry. 263 Mass. 553, 554.
It was not error to exclude the paragraph in the auditor’s report as to damages in view of the change in Rule 86 of the Superior Court (1954) effective December 1, 1964. The rule now provides as to reports in references where the findings are not to be final: “If the ultimate finding is for the defendant, the report shall not include any findings of subsidiary facts as to any items of damages.”
Exceptions sustained.
