Weil v. Boston Elevated Railway Co. , 218 Mass. 397 ( 1914 )

Braley, J.

The first and decisive question for decision is. whether after verdicts for the defendant the ruling of law granting new trials on the plaintiff’s motions, because the issue was so narrowed in the instructions "that the plaintiff was deprived of opportunity to have the jury pass upon aspects of the case which . . . were open on the pleadings and the evidence,” was erroneous. If the ruling is right the plaintiff’s exceptions taken to rulings during the trial become immaterial. The rights of the defendant also are fully protected. The ruling made as the basis for the action of the Chief Justice of the Superior Court, while reviewable on the exceptions taken by the defendant, who for the first time became the party aggrieved, is open on the report, although the exceptions would not be ripe for entry in this court until the case had been finally disposed of in the trial court. Shanahan v. Boston & Northern Street Railway, 193 Mass. 412. Loveland v. Rand, 200 Mass. 142. Brooks v. Shaw, 197 Mass. 376, 378, 379, and cases cited. R. L. c. 173, § 105. Foote v. Cotting, 195 Mass. 55, 64.

The actions are tort for personal injuries causing the conscious suffering and death of the plaintiff’s testatrix while a passenger on one of the defendant’s open cars. It is alleged in the declarations, that her injuries and death were caused by the gross negligence of the defendant’s servants through the manner in which they “started, stopped and operated” the car. The word “gross” may be disregarded, leaving the allegations sufficiently full and inclusive to permit proof on either ground of their negligent conduct in the management of the car. French v. Lawrence, 190 Mass. 230, 232. St. 1907, c. 392. Cooney v. Commonwealth Avenue Street Railway, 196 Mass. 11, 16, and cases cited. And although the counsel for the plaintiff in opening rested the right of recovery on the negligent starting of the car as the decedent was in the act of alighting, his statement did not preclude the plaintiff from fully presenting, and having the jury pass upon all issues of fact raised by the pleadings. Minchin v. Minchin, 157 Mass. 265. It is only where the facts which the plaintiff proposes to prove fail as stated in the opening to bring the case within the declaration, that the defendant properly may ask that a verdict be ordered for him. Hey v. Prime, 197 Mass. 474, 475. Lee v. Blodget, 214 Mass. 374, 377.

It is unnecessary to recite at length the voluminous testimony. The jury upon the conflicting and irreconcilable statements of the witnesses would have been justified in finding, that, the car having been equipped with a system of electric push buttons for the use of passengers, the decedent, desiring to alight, pressed a button on the stanchion of her seat. The signal being heard by the conductor, he rang the strap bell in the motorman’s end of the car. Thereupon the motorman in response slackened speed, bringing the car either to a full stop, or nearly to a full stop at a place designated by the company for passengers to board or leave the car, and as the decedent using due care was stepping to the running board, the car, without any warning being given, unexpectedly resumed its speed, throwing her to the ground. The jury had the right to say on the testimony of even one witness that the bell had been rung by the conductor, and not by a volunteer without the knowledge of the conductor. Killam v. Wellesley & Boston Street Railway, 214 Mass. 283. If not satisfactorily explained, these facts were evidence of negligence on the part of either the conductor or the motorman. Lucarelli v. Boston Elevated Railway, 213 Mass. 454. Vine v. Berkshire Street Railway, 212 Mass. 580. Killam v. Wellesley & Boston Street Railway, 214 Mass. 283. Gray v. Boston Elevated Railway, 215 Mass. 143.

But even if the position or conduct of the decedent indicating her desire and purpose to alight was not directly noticed by the conductor or the motorman, the jury could find that the car had been almost stopped where passengers generally might be expected to depart, and suddenly to go on at accelerated speed, without taking due precautions to ascertain whether passengers intending to get off and relying on the implied invitation were preparing to alight by stepping to the running board, also was evidence of negligence. Hill v. West End Street Railway, 158 Mass. 458. Lacour v. Springfield Street Railway, 200 Mass. 34. Nolan v. Newton Stred Railway, 206 Mass. 384.

It is furthermore plain, that, if the jury believed the evidence of the motorman and of the defendant’s foreman, the system of push buttons had become unworkable by reason of the exhaustion of the batteries. The evidence shows, that the batteries frequently ran down, and that the conductor or motorman could have ascertained whether they were usable, but that neither made any investigation or informed passengers that the signal could not be given» It is not an excuse, that the duty of inspection of the batteries after a car had been run three hundred miles which covered a period of three or not exceeding four days’ service, had been delegated to other employees. The car as equipped was a regular and not a special car. It had been sent out as providing to the public a safe mode of conveyance. It was to be “operated” by the motorman and conductor to whom its management had been entrusted. The proper discharge of their several duties comprised a reasonable supervision of all instrumentalities furnished for the use and convenience of passengers to enable them to give notice whenever they wished to terminate the transit at a regular stopping place. The jury accordingly would have been warranted in finding further from the length of time during which the conductor and motorman had been in charge of the car on the day of the accident and before its occurrence, that the defendant’s employees in the discharge of their respective functions should have been aware of the breakdown of the apparatus, and, if upon examination the defect could not be remedied by them, they should have taken suitable measures for the protection of passengers who through ignorance of what had taken place might be misled to their harm. Indeed the motorman testified, that in the absence of any rule of the company to the contrary, if he heard the push button signal when the car was approaching an ordinary stopping place, he sometimes stopped the car even if he “got no bell from the conductor.” The decedent is not shown to have had any knowledge of this defective condition, and if the jury were satisfied that in reliance upon the attempted signal, and induced by the belief when the strap bell rang that the signal had been recognized, she left her seat while the car was barely moving, approached the side of the car, and prepared to step to the running board, there was evidence for their consideration that the negligent failure of the conductor or motorman to ascertain whether the push buttons were in working order was the efficient cause of the accident. Doe v. Boston & Worcester Street Railway, 195 Mass. 168, 171, 172, and cases cited. McGarry v. Boston Elevated Railway, 195 Mass. 538, 540.

The plaintiff having been entitled to go to the jury upon all the grounds of alleged liability shown by the evidence, the ruling at the trial, that he could not recover under the pleadings and the opening unless the car had come to a full stop and then was started before the decedent had a reasonable opportunity to depart, unduly restricted his rights.

While the plaintiff might have resorted to his exceptions for the rectification of this error, he also could move for a new trial because of a misdirection in law. R. L. c. 173, § 112. Anthony v. Travis, 148 Mass. 53, 57. Nagle v. Laxton, 191 Mass. 402, 403.

It follows that by the terms of the report the order granting the motions is to stand, and there is to be a new trial in each case.

So ordered.