Frink v. Boston Elevated Railway Co. ( 1914 )

Loring, J.

The facts in these two cases were, or could have been found by the jury to have been, substantially as follows:

The plaintiff, in the first case (who will be spoken of as the plaintiff), with two companions, undertook to board a car of the defendant. The plaintiff and her companions had signalled the car to stop and it had stopped. The plaintiff’s two companions succeeded in getting upon the car. After they had done so, the plaintiff put one foot on the step and while the other foot was still on the street, two bells were sounded, the car started immediately and she was thrown off her feet. On the plaintiff’s evidence the conductor “was about two windows in the car” and “did not approach the rear platform” while these occurrences took place.

Under these circumstances, the judge instructed the jury in effect that they could not find that the car was started by the defendant, but that they could find that the conductor was negligent in allowing the car to be started by a third person, and he read a passage from the opinion in Nichols v. Lynn & Boston Railroad, 168 Mass. 528, 530.

To this charge the defendant took an exception.

In one respect the instructions given were more favorable to the defendant than those to which it was entitled. Under the facts of the case the jury were warranted in drawing the inference that the car was started by the defendant’s servants. Killam v. Wellesley & Boston Street Railway, 214 Mass. 283.

But if the jury did not in fact draw that inference, that is to say, if they found (as they had a right to find) that the car was started by a third person, it was open to them to hold the defendant liable on the ground on which the defendant was held in Nichols v. Lynn & Boston Railroad, 168 Mass. 528, and which was not open under the pleadings in O’Neil v. Lynn & Boston Railroad, 180 Mass. 576, to wit, on the ground that the conductor was negligent in allowing the car to be started by a third person. As was said in Nichols v. Lynn & Boston Railroad, ubi supra: “The jury might think that the conductor was negligent in failing to hear, and at once to countermand, the signal to start, not to mention other possible aspects of the case.” This ground of liability in such a case as the present was not denied by what was said in Killam v. Wellesley & Boston Street Railway, ubi supra, at page 285. To make out a case on this ground it is not necessary for the plaintiff to show that cars had been habitually started by third persons before the day of the accident, although that is competent, as was held in Nichols v. Lynn & Boston Railroad, ubi supra.

The portion of the opinion read to the jury from Nichols v. Lynn & Boston Railroad, ubi supra, applied to the case made out in the evidence in this action. It was not improper to read it to the jury. Post v. Leland, 184 Mass. 601. Commonwealth v. Dow, 217 Mass. 473.

Exceptions overruled.