James v. Boston Elevated Railway Co.

Knowlton, C. J. The plaintiff was injured while being transported as a passenger in one of the defendant’s electric cars which left the track for some unknown cause. In her action to recover damages for the injury the declaration contained three counts, the first of which was treated at the trial and described in the bill of exceptions as alleging negligence on the part of the persons operating the car; the second alleged negligence in suffering the car to be in an improper and unsafe condition, and the third alleged-negligence as to the condition of the track and the roadbed. On inspection of the first count we are of opinion that it is broad enough to include any kind of negligence, on the part of the defendant or its servants, which caused the accident. At the trial the plaintiff relied largely upon the fact that the car went off the track near the end of a bridge, and turned around, so as to stand almost at right angles to the track, as evidence of negligence under the doctrine res ipso loquitur. At the close of the evidence the defendant’s counsel requested an instruction to the jury, as to each count of the declaration, that the plaintiff was not entitled to recover under that particular count. These requests were refused, and the case was submitted — 265 — to the jury generally, and they returned a general verdict for the plaintiff. It is impossible to tell on which count the verdict was found, or whether the finding was for the plaintiff on each count. There was evidence to warrant a verdict for the plaintiff on the first count; for the mere fact that the car left the track in the manner described was enough to justify a finding of negligence of some kind for which the defendant was responsible. It is a question of more difficulty whether there was any evidence to warrant a finding that the accident was caused by the improper condition of the track, as distinguished from other causes. There was some testimony of an irregularity in the track at a joint, between two rails, and that the car left the track at that point; but there was absolutely no evidence of any defect or want of repair in the car itself. Considering the casé in reference to the second count alone, it is plain that there was no evidence that would warrant the jury in finding proof of the facts alleged. If there are different kinds of negligence that might cause an accident, the fact that the accident happens from some unknown cause is not enough to show that it happened from some particular cause, alleged in a particular count of the declaration. This was expressly decided in Minihan v. Boston Elevated Railway, 197 Mass. 367, and it follows from the general principles on which the doctrine res ipso loquitur is founded. Pinney v. Hall, 156 Mass. 225. Thomas v. Boston Elevated Railway, 193 Mass. 438. Curtin v. Boston Elevated Railway, 194 Mass. 260. Cassady v. Old Colony Street Railway, 184 Mass. 156. The request that there was no evidence to warrant a verdict for the plaintiff on the second count should have been given. The defendant contends that the evidence of a physician, as to the condition in which he found the plaintiff’s mother on examination of her should have been admitted, because of evidence that heredity is a common cause of hysteria, with which the plaintiff was afflicted, and which she imputed to the accident. Assuming that there might have been a condition of the plaintiff’s mother of such a kind as to be competent evidence on the question whether the plaintiff’s condition was caused by the accident, or was inherited wholly or in part from her mother, the defendant’s counsel did not go far enough to indicate that — 266 — he could prove such a condition. He made no offer of proof, and for this reason we think the question was rightly excluded. H. D. MeLellan, for the defendant. R. H. Sherman, for the plaintiff. The other question of evidence, argued by the defendant, relates to the offer of the defendant to show, as evidence of the plaintiff’s physical condition before the accident, that an attorney who was employed by the plaintiff to prosecute a claim for her, a short time before the accident, was called upon to state the claim to the attorney of the man from whom she sought to recover, that the attorney then said that she claimed damages because of her physical condition, produced by this man to her detriment. The particulars of the evidence do not appear, as the question comes before us on an offer of proof, the witness not having been permitted to testify what the attorney said in regard to her physical condition, when he was stating her claim, founded either wholly or in part upon this condition. The questions and the offer bring the case within the decision in Loomis v. New York, New Haven, & Hartford Railroad, 159 Mass. 39. The attorney was her agent and representative, acting in her business. What he said or did within the scope of his employment must be presumed to have been done under her instructions, and it is evidence which may be used against her, differing only in weight, but not in competency, from her personal words and acts. In the case just cited is this language: “An attorney . . . employed to present and collect a claim is impliedly authorized to state to the debtor what the claim is. The plaintiff could not have expected that her attorney would collect her claim from the defendant on demand, without stating the nature and particulars of it, so that the defendant could understand it, and make an investigation in regard to its validity.” It was held that a letter from the attorney, stating the particulars of his client’s claim, was evidence that could be used against her on the trial. The evidence of the claim presented by the plaintiff’s authorized attorney should have been admitted in the present case. Exceptions sustained.