McDonough v. Boston Elevated Railway Co. , 208 Mass. 436 ( 1911 )

Loring, J.

These were two actions tried together. Both the plaintiffs were sitting on the smokers’ seat in the rear of the cross seats of one of the defendant’s semi-convertible cars at the time of the accident here complained of. McDonough was sih ting at the forward end of the smokers’ seat next the first cross seat. Manser was sitting next to him, and one Mulligan, who was called as a witness by the plaintiffs, sat in the corner. Of a sudden Manser fell forward into the aisle holding on to his head and McDonough felt a blow or shock and came to in a doctor’s office. One of his arms was broken in three places and the next day there were water blisters all up and down it. Each plaintiff testified that he knew what an electric shock felt like and that at the time in question they had a feeling like that which they had experienced when they had had an electric shock. In addition McDonough testified that the doctor (since deceased) who attended him “ told him that he was suffering from a severe electric shock.” There was evidence that a large car of the defendant passed the car in question at the time the accident happened, and that as it passed there was a noise (to quote one of the plaintiffs’ witnesses) “ as though the cars came together, or something was rubbing like r-r-r-r-r-r.”

There was evidence that the windows behind the plaintiffs were open and outside the windows and distant five inches from the back of the seat on which they were sitting was a wire grating ; and that there was a metallic piece in the floor near the head of the smokers’ seat which “ would make a ground for electricity.”

The accident happened just before the car came to a drawbridge, or just as it left it, — which was not clear on the evidence. There was evidence that the defendant’s tracks on the drawbridge were farther apart than they are in the streets, and that not far from each end of the bridge they curve in to the ordinary street width. An expert witness called by the plaintiffs testified that these large cars swing on a pivot in the middle and that if the forward end of one car was swinging around this curve going one way and the rear end of another was swinging around it going the other way they might collide. The same witness testified that he had examined the car here in question. After describing the arrangements of electricity in it he testified that if the ends of two cars did meet as they swung around the curves above mentioned and the insulation of the cars was imperfect, electricity from one car could charge the grating of the other and if the plaintiffs’ head or hand was in contact with the grating they could receive such injuries as the plaintiffs testified they had received. There was some evidence that Manser’s head and one of McDonough’s hands were against the grating, and there was evidence that warranted a finding that the defendant had not adopted reasonable means to ascertain whether the insulation of the wiring on its cars was impaired.

The defendant’s argument in support of its contention that this evidence did not warrant a verdict for the plaintiffs is in effect that each step which leads up to the plaintiffs’ having received electric shocks was not fully proved. But the jury were warranted on the plaintiffs’ testimony alone in finding that they did receive electric shocks and that fact, if believed, is a fact which could be relied on to help out proof of some details. In addition the happening of the accident .itself gave rise to the application of the doctrine of res ipso loquitur, and the plaintiffs’ attempt to explain the accident did not deprive them of the right to rely on that. See McNamara v. Boston Maine Railroad, 202 Mass. 491, where the cases are collected.

The defendant also has contended that there was no evidence warranting a finding that the defendant was negligent “ in controlling the electric current by which said car was propelled,” and that in the absence of such evidence a verdict for the plaintiffs on the first and second counts could not be found. For the reasons already given we are of opinion that there was evidence of that fact.

The defendant has assumed that in case of the third count the plaintiffs were confined to the facts stated in its specifications. In our opinion that is not so. It is manifest that the presiding judge at the first trial allowed the plaintiffs to amend the declarations by adding the third count (alleging general negligence) to enable them to rely on the doctrine of res ipso loquitur. The defendant could not deprive the plaintiffs of that right by requiring them to file specifications and by so cutting down that count to a count alleging special negligence. In our opinion the plaintiffs maintained their right to rely on their allegation of general negligence in the third count by adding to the specifications filed by them: “ And the plaintiff further says that he is unable to further specify as to the negligence of the defendant.”

Exceptions overruled.