Hull v. Berkshire Street Railway Co.

De Courcy, J. The accident happened on the highway that runs northerly from Williamstown to Bennington; and the single track of the defendant is located on the westerly side of the way. There was evidence from which the jury could find the following facts: The electric car, which was coming in a southerly direction and down grade, was running at a speed of from forty to fifty miles an hour and was swaying from side to side; and the plaintiff, in his automobile, was going in a northerly direction and exercising reasonable care. The trolley wheel left the wire when the electric car was about four hundred feet distant from the automobile; the trolley pole, after some violent movements up and down, was broken off near the base, hurled into the air and thrown against the left forward wheel of the automobile, causing it to be turned sharply to the right, toward a bank; and the plaintiff, expecting that his machine was about to “turn turtle,” jumped out and was injured. The electric car was not brought to a stop until it had gone two or three hundred feet beyond the automobile. Plainly this made a case for the jury, and the defendant’s first request could not be given. Steverman v. Boston Elevated Railway, 205 Mass. 508. Uggla v. West End Street Railway, 160 Mass. 351. The second and third requests presumably were intended to present the same contention, which was in substance that no inference of negligence could be drawn from the fall of the trolley pole under the circumstances. They were rightly refused, and the instructions of the trial judge on the doctrine of res ipso loquitur were correct. Unless some explanation was offered, the fact that the iron trolley pole, while being used for the pur [363] pose for which it was designed, broke and was thrown violently from the car would warrant an inference that reasonable care had not been taken to make the apparatus safe; and that the negligence prima fade was that of the defendant, which had exclusive control and management of the car. If, however, the evidence explained the cause of the breaking of the trolley pole, then there was no occasion to resort to presumption, and the jury must determine from the facts as shown whether the accident was due to negligence on the part of the defendant. But the mere fact that the parties offered direct evidence to explain the occurrence and failed in the attempted explanation, would not deprive the plaintiff of the benefit of the presumption of culpability arising from the doctrine of res ipso loquitur. And the jury were instructed accordingly. Uggla v. West End Street Railway, ubi supra. McNamara v. Boston & Maine Railroad, 202 Mass. 491, 495. Craft v. Boston Elevated Railway, 211 Mass. 374. The exceptions to the admission and exclusion of evidence are not argued, and we treat them as waived. Exceptions overruled.