Farnon v. Boston & Albany Railroad

Loring, J. While the plaintiff was a passenger on an excursion train of the defendant railroad, his fingers were caught between the bumpers of the seventh and eighth cars from the rear end of the train, and were held there for twenty seconds, while the train was backing. He put in evidence showing that he was standing just within the threshold of the forward door of the car in question and was thrown forward on to his hands by the train backing violently, and that when he fell his hand was on the edge of the platform and his fingers were caught between -the bumper of that platform and that of the car in front of it. [216] The defendant contended that the plaintiff’s fingers were caught while he was reaching down to pick up a cigarette which he had dropped; but that contention is disposed of by the verdict, and the only questions before us are whether the jury were warranted in finding for the plaintiff and whether the instructions were correct under which they gave him a verdict. The plaintiff and the defendant do not differ materially as to the movements of the train at the time in question. The plaintiff’s story is that the train stopped between stations; that some little time after it stopped it went back with a jar which threw' him down, and a second jar caught his hand. The defendant’s evidence showed that the train was stopped by the application of the air brake by some person not in its employ; that the train was stopped at a steep up grade, on a curve, and that in order to start the train it became necessary to back down and get the slack between the several cars; when this is done, each car is started separately, and the momentum of those which have been started helps the engine in starting the cars behind those which have been put in motion. In this case it appeared that the engineer tried to start the train in this way three or four times; that the fourth or fifth time he tried it, he had the brake on the last car set by hand, and that he then was successful. The defendant’s first contention is that, on the evidence, the plaintiff was not in the exercise of due care. The plaintiff’s testimony was that he boarded the last car of the train just before it started, and walked through seven cars, all of which were crowded; all the seats in the car were full and “ people in the aisles and people on the platform ” ; that when he reached the forward end of the seventh car, he looked through the cars ahead, the doors being open, and every car was crowded; that “ there was more of a crowd ahead than there was behind,” and that it was “ useless to seek for a seat further ” ; that he stood about a yard back from the door of this car until the train stopped, as we have stated, when there was a movement forward to see “ what the matter was that at that time he went to the threshold of the car, but not over it, and had been there some fifteen seconds when the accident happened. The defendant’s evidence showed that there were some eleven hundred and two seats on the train and nine hundred and fifty-two passengers, and that there were [217] plenty of vacant seats in the two front cars; .its contention was that it was the duty of the plaintiff to be seated, and that he cannot recover for an accident which it is manifest would not have happened to him if he had been sitting down. If the plaintiff had elected to stand when he might have sat, we should agree to this contention; but if the jury found that the plaintiff believed that the cars ahead were as crowded as were those seven through which he went, they might well have found that he was in the exercise of due care. Though he testified at the trial that “ the number was limited to one thousand, that was supposed to go on the excursion,” and that he knew there were fourteen or fifteen cars, it does not follow, as contended by the defendant, that he knew that there were seats for all; the seating capacity of a car is not a matter of common knowledge, and certainly not necessarily within the knowledge of a boy between sixteen and seventeen years of age, working in a machine shop for $12 a week; and, as the plaintiff testified, there might have been persons on the train “ not riding on excursion tickets ”; and finally, no suggestion that there were seats in the front car was made either by the conductor, who took the plaintiff’s ticket as he was going through the seven cars, through which he went in search of a seat, nor by the brakeman, who stood between the forward end of the seventh car, the car in question, and the eighth car during the hour and a half that the train was in transit between Boston and the place in question, where it stopped. As to the further point made by the defendant, that there was no evidence that there were not enough seats for all the passengers and yet the presiding judge left that question to the jury, we agree that the plaintiff could not have seen that there was not a seat in any one of the eight cars ahead of him, and his testimony cannot be taken to be evidence to that effect; but the jury might have disbelieved the testimony of the defendant’s witnesses or found that they were mistaken; for this reason, there was no impropriety in leaving it to the jury to decide whether there were vacant seats in the forward cars. For these reasons, we are of opinion that the fact that the plaintiff was not seated is not conclusive against him, and that the presiding judge was right in leaving to the jury the question whether he was in the exercise of due care and that the instructions under which that question was left to the jury were correct. [218] We are also of opinion that there was evidence of negligence on the part of the defendant. It is too narrow a view of the case to say, as contended by the defendant, that there was no negligence because the train came to a standstill on a heavy up grade' and on a curve, without fault on its part; and there was no evidence that more force, or a different kind of force, was used than was necessary to start it. Apart from the right of the jury to disbelieve the evidence as to the force used, the jury might well find that the defendant was negligent in putting so heavy a train behind a single engine, which the engineer admitted was “not the largest,” and was one which he had never before used on “ 15 car trains ”; for although he testified that its “ capacity to draw fifteen loaded passenger coaches was all right, power enough for that train,” yet the jury were justified in finding from the event, that if the train was stopped at a bad place, the engine could not start the train without throwing down, or being likely to throw down, passengers who were standing up; the jury were justified in finding that the defendant knew that passengers were standing in this train without objection on the part of its servants, who had charge of the train. The negligence consisted in making up the train so that the engineer had to take up the slack and go forward with a jerk to start it, if it happened to stop in such a place as it did stop in, coupled with the failure of the defendant, through its servants, who were in charge of the train, to warn passengers that the train would start back with a jerk radically different from that usually experienced when a train is put in motion. Exceptions overruled.