Donahoe v. Boston Elevated Railway Co. , 214 Mass. 70 ( 1913 )

Rugg, C. J.

These exceptions relate only to the charge. No requests for instructions were presented, but at the close of the charge objections were made.

It seems from the record that one of the chief controversies at the trial related to the question, whether the plaintiff was thrown from her seat and injured by a collision between the car of the defendant, on which she was a passenger, and a cart. A con-amount of evidence was introduced upon this issue, a number of witnesses having testified (so far as the record shows all who were present, except the plaintiff) that no one was thrown out of a seat by the jar of the collision. The charge made no reference to this subject, and at its close the counsel for the defendant cajled attention to this omission, stating that it was “the main question.” The judge then, in three or four brief sentences, touched this branch of the case. It is not necessary to determine whether this was an adequate instruction upon so important an issue, because no exception was saved on this point. It is true that the attorney for the defendant excepted to its insufficiency, but when the judge asked what he required as sufficient, the only reply related to another subject. The judge was well within his right in asking for a statement of the specific grounds of objection. When the answer omitted all reference to that point it must be assumed that the exception in this respect was waived and the additional charge regarded as adequate.

Exception also was taken to the inaccurate statement that the law imposed upon the motorman the highest degree of care consistent with running the car. This was modified by the judge when attention was directed to it, to the extent of saying in substance that the degree of care required was the utmost care consistent with running the business of the defendant. It well might have been amplified in accordance with what was said in Gardner v. Boston Elevated Railway, 204 Mass. 213, 217, and the numerous cases there cited. Glennen v. Boston Elevated Railway, 207 Mass. 497. But it cannot be held incorrect or erroneous. Criticism is made further to the use of the phrase, “highest degree of care” in this connection. But this has been approved many times. It is brief and easily understood, and is sufficiently exact for practical purposes. When closely analyzed . it means that passengers of necessity surrender to a common carrier all power of control over the conveyance in which they are transported. Thereby, the carrier becomes bound to exercise the degree of care which the circumstances demand. When the safety and lives of human beings are committed thus so completely to the charge of the carrier and the consequences of negligence on its part may be fraught with so much danger, it is only reasonable care to exercise the utmost caution which is compatible with the conduct of the business, according to the requirements of the public, as to rapidity, expense and comfort.

Exceptions overruled.