Dolphin v. Worcester Consolidated Street Railway Co.

Loring, J. [After the foregoing statement of the case.] 1. The judge was right in refusing to give the first and second rulings asked for. There was no evidence of negligence on the part of the corporation. The plaintiff’s argument here is that the injury would not have happened as he claimed it happened if the railing had been down. That may be conceded. But that is not the question. The question is whether it was negligence on the part of the corporation to have failed to adopt a rule requiring the railing on that side of the car which is on the outer side of the curve to be put down when one of its-cars is going around curves like the curve here in question. The corporation had provided by rule for a speed not exceeding three miles an hour on sharp curves. It is manifest that the railings in question were intended to prevent passengers from leaving a car on the inner side where there are double tracks. In our opinion there is no such probability of a passenger’s being thrown bodily out of his seat while the car is going round a curve as to require the corporation in the exercise of the highest degree of care to adopt a rule which should ensure his being held in his seat by physical force. McKimble v. Boston & Maine Railroad, 139 Mass. 542; S. C. 141 Mass. 463, cited by the plaintiff, does not help him. 2. The judge was right in refusing to give the sixth ruling asked for. A failure to exercise the highest degree of care is slight negligence. 3. The seventh ruling requested was wrong. The term “ gross negligence ” in a case where the degree of care due is the highest [273] degree of care means that there has been a gross failure to exercise that degree of care. 4. There are degrees of care in cases under R. L. c. 111, § 267, by force of that act.* Exceptions overruled. Footnotes [*] That the wanton and reckless disregard of consequences which makes a defendant liable at common law to a plaintiff not in the exercise of due care is something more than negligence gross in degree, see Banks v. Braman, 188 Mass. 367.