Chaffee v. Consolidated Railway Co. , 196 Mass. 484 ( 1907 )

Braley, J.

Unless there was evidence that the relation of passenger and carrier existed between the parties, the defendant’s request that a verdict be ordered in its favor should have been granted.

At the outset, the bill of exceptions states that at the time of the accident the plaintiffs “ were passengers upon a car of the defendant.” The subsequent recital of an admission of ownership merely emphasizes this statement. It is urged by the defendant that, notwithstanding this admission, there was no evidence as to who was operating the car or in control of the railway. But if the details are meagre, it was beyond conjecture that the defendant, described in the writ as a railway company, owned a car, running over a line of street railway operated by electricity, in which the plaintiffs in common with others were being transported. It received and undertook to carry the plaintiffs in this car over the line of track on which it ran, and the use to which the car was put, with the conditions of operation unexplained, warranted the inference that the defendant at the time offered this means of transportation to those who wished to avail themselves of such facilities. Indiana Union Traction Co. v. Jacobs, 167 Ind. 85.

If the plaintiffs were passengers in a car provided by the defendant, it had engaged to exercise such reasonable diligence for their safety during transportation as the nature of the business required. Gordon v. West End Street Railway, 175 Mass. 181. Davey v. Greenfield & Turners Falls Street Railway, 177 Mass. 106. Pomeroy v. Boston & Northern Street Railway, 193 Mass. 507. Egan v. Old Colony Street Railway, 195 Mass. 159, and cases cited. Another car variously described as a work or flat car preceded the car in which the plaintiffs were riding, when, as it approached a portion of the track where there was a rising grade, the forward car, then a short distance in advance, slid backward on the rails, and, suddenly descending, came into collision with the passenger car, causing the accident.

Again it is said that there is a failure of evidence to connect th'e defendant with the management of the work car. But, the plaintiffs having, shown the collision, this fact until explained by the company was some evidence of negligence, as the jury could find that in the ordinary course of affairs it would not have happened if proper precautions had been taken. Egan v. Old Colony Street Railway, ubi supra. The defendant, indeed, offered some evidence of the efforts made by those in charge of the work car and by the section men, as it passed, to prevent it from sliding, but the fact that neither the application of the brake, nor of the sand and gravel placed on the track appreciably retarded its speed, still left the question of negligence in the management of this car to be determined by the jury. If negligence were found, then the defendant was responsible to the plaintiffs for the resulting injury to which it voluntarily had exposed them, even if the work car and the railway were under the control of another corporation. Littlejohn v. Fitchburg Railroad, 148 Mass. 478. Stetler v. Chicago & Northwestern Railway, 46 Wis. 497. See also Engel v. New York, Providence & Boston Railroad, 160 Mass. 260, 263.

Exceptions overruled.