Niland v. Boston Elevated Railway Co. , 208 Mass. 476 ( 1911 )

Rugg, J.

There was evidence tending to show that the plaintiff, while a passenger upon one of the defendant’s surface cars, was injured by its sudden stopping incident to a collision with an ice wagon, left unattended in the street. There was ample evidence to support a finding that the accident occurred through the sudden movement of the horses attached to the ice wagon which brought one of them without warning upon the track in front' of the car, and that the motorman then quickly stopped his car, which was not going at an excessive rate of speed. If these were the facts, the defendant would not be liable. Timms v. Old Colony Street Railway, 183 Mass. 193.

But the plaintiff testified that the track was straight for a considerable distance, that “ the ice wagon was not going ” and that the car struck “ some part of the ice wagon.” So far as the printed record goes, this seems to warrant a finding that the plaintiff was injured by the car running into a wagon stationary upon the track. It requires no discussion to show that this might be found to constitute a violation of that high degree of care which the defendant owed to the plaintiff as its passenger.

The case, therefore, should have been submitted to the jury. If in the opinion of the Superior Court the weight of the evidence was so strongly against the plaintiff as not to warrant a verdict in his favor, and the jury should make the mistake of returning such a verdict, the injustice could be corrected by setting it aside on. motion. The practice in this Commonwealth and generally requires a submission to the jury if there is evidence proper for their consideration, even though the preponderance may appear so great to the trial judge as to require him (if requested) to set aside one or several verdicts rendered against such preponderance. White v. Boston, 122 Mass. 491. Bryant v. Commonwealth Ins. Co. 13 Pick. 543. Clark v. Jenkins, 162 Mass. 397, and cases cited. Aiken v. Holyoke Street Railway, 180 Mass. 8, 12. Lurton, J., in Mt. Adams & Eden Park Inclined Railway v. Lowery, 74 Fed. Rep. 463, 476. Taft, J., in Felton v. Spiro, 78 Fed. Rep. 576, 582. Exceptions sustained.