Lemay v. Springfield Street Railway Co.

Sheldon, J. The defendant’s eighteenth request could not have been given as framed. It would have excluded from consideration by the jury the question of the motorman’s negligence in approaching a sharp curve at an excessive and dangerous rate of speed before he had discovered the failure of his air-brake, and the question whether, if he was confronted with unexpected peril, he acted with proper diligence under the circumstances then existing and with the light that he then had. It is true that allowance must be made for one compelled to act immediately, without opportunity for deliberation, upon a sudden emergency. But this does not mean that he is necessarily excused for any error of judgment, but simply that his conduct is to be judged in Anew of the exigency and the need of immediate action. He is still bound to use the same degree of care to which he is ordinarily held; but due allowance must be made for the situation in which he is placed, and he is not to be held to a coolness of judgment for which there is not time. Linnehan v. Sampson, 126 Mass. 506, 511, 512. Cody v. New York & New England Railroad, 151 Mass. 462, 468. Tozier v. Haverhill & Amesbury Street Railway, 187 Mass. 179. O'Brien v. Lexington & Boston Street Railway, 205 Mass. 182, 184. This is the rule stated in Brooks v. Petersham, 16 Gray, 181, 184; and we know of nothing in our decisions to the contrary. While a choice, though mistaken, may yet be prudent (Kane v. Worcester Consolidated Street Railway, 182 Mass. 201), this must be determined by the jury and not by the court. The instructions given to the jury upon this question were accurate and sufficient. But the twenty-fifth and twenty-sixth requests should have been given; for although the defendant would have been liable upon a proper declaration if the accident was caused by any defect in its car which might have been discovered and remedied by proper inspection, yet the declarations in these cases averred merely that the accident was caused by the fact that the defendant had “ so carelessly, negligently and recklessly operated ” its car as to cause it to approach and go around the curve at a very high and dangerous rate of speed, causing the injuries complained of. This plainly charged only the negligent operation of the car, and not negligence in using a defective or poorly equipped car. The plaintiffs were allowed to recover, and the [68] verdicts in their favor may have been found, upon an issue which was not open under the pleadings, and which the defendant seasonably requested to have withdrawn from the jury. Lund v. Tyngsboro, 11 Cush. 563, 567, et seq. Hanlon v. South Boston Horse Railroad, 129 Mass. 310. James v. Boston Elevated Railway, 201 Mass. 263. But the bill of exceptions seems to indicate that the defendant was fully heard upon this question, and it was fairly submitted to the jury. It follows that if the plaintiffs’ declarations shall be amended so as to present this issue, justice does not demand a new trial. Denham v. Bryant, 139 Mass. 110, 112, and cases cited. Peck v. Waters, 104 Mass. 345, 351. Fay v. Walsh, 190 Mass. 374, 377. Beers v. McGinnis, 191 Mass. 279, 282. The other exceptions have not been argued and we treat them as waived. If the plaintiffs shall be allowed by the Superior Court within sixty days from the filing of the rescript to amend their declarations as has been stated, the exceptions will be overruled; otherwise, they must be sustained. So ordered.