Kellogg v. Boston & Maine Railroad

Braley, J. It is urged by the defendant that as the declaration contained no general allegation of negligence but only the specific averment that the defendant provided an insufficient [326] and improper door fastener, there was a fatal variance between the cause of action alleged and the proof. But no question of pleading was raised by the request on which a verdict was ordered in its behalf, and the question for decision is, whether there was any evidence which would have warranted a verdict for the plaintiff. Ridenour v. H. C. Dexter Chair Co. 209 Mass. 70, 78. The plaintiff was a passenger and, when the train came to a stop at the station where he was to alight, the brakeman' or baggage master announced the station, opened and pushed back the door of the car upon the metal catch, which closed and should have held it securely in place. In passing out but one passenger, who did not touch the door, preceded him, and as he followed and stepped over the threshold, the door, although he did not come in contact with it, unclasped and closing caught and injured his hand. It would follow that the plaintiff was injured while taking his departure under conditions established by the carrier, and had the right to assume that reasonable precautions had been taken to enable him to leave in safety, and if the accident happened as described by him, a finding that he exercised ordinary care would have been justified. Carroll v. Boston & Northern Street Railway, 186 Mass. 97. The defendant provided the device and used it while passengers were making their exit. The car was at rest, and there having been no unusual jolt or intervening cause ordinarily incident to this mode of travel which unloosed the door, the jury, judging from their common experience and knowledge, could have found, that unless the catch was in some way defective it would have worked properly and the door would not have instantaneously closed. Silverman v. Carr, 200 Mass. 396, 398. Wadsworth v. Boston Elevated Railway, 182 Mass. 572, 574. But the defendant, relying on the plaintiff’s evidence that when the car stopped it was somewhat inclined from the side on which the door was hinged, contends that this slight shifting of the centre of gravity created an unusual strain sufficient of itself to explain the mechanical action of the catch. Yet even then the sufficiency of the catch was a question of fact. Carroll v. Boston Elevated Railway, 200 Mass. 527, 536. The jury might have been satisfied that if suitable, it would not [327] have yielded to the strain, but still would have prevented the door from being easily moved. Weinschenk v. New York, New Haven, & Hartford Railroad, 190 Mass. 250. The defendant moreover had the absolute control of the movement of its passenger trains. If it chose to stop them for the discharge of passengers, where, because of the physical character of the location of the tracks, a due regard for their safety required that, when the train stopped and they were leaving the car, the doors, when opened and held back, should be so confined as to prevent their unexpectedly closing, it was a question of fact whether the accident would have happened if this duty had been properly performed. Marshall v. Boston & Worcester Street Railway, 195 Mass. 284, 287. We are unable for these reasons to distinguish in principle the case at bar from Silva v. Boston & Maine Railroad, 204 Mass. 63, where our previous decisions bearing upon the questions raised are collected and reviewed. Exceptions sustained.