Bell v. New York, New Haven, & Hartford Railroad

217 Mass. 408

Opinion

Loring, J.

The defendant in this case rested on -the plaintiff’s evidence and asked the judge

* to rule that the plaintiff was not entitled to recover, and that there was not sufficient evidence to warrant a finding of negligence.

The evidence was in substance this. The plaintiff was a passenger on one of the defendant’s trains running “express” from Bridgewater to Brockton, when “without any warning or whistle or anything,” it came to a sudden stop, and after a few minutes proceeded on its way. Before the stop the plaintiff had been sitting with her husband at her side. She testified that she “was just reclining,” that she was “sitting way back on my seat with my head on the back.” The sudden stop (so she testified) “gave me a shock and threw me forward, . . . moved me to the edge of my seat.” “To protect” herself she put her left hand on the seat in front and with her right hand she “grabbed” her husband’s arm. There was evidence from others that the sudden stop “threw everybody in the train,” and that some passengers standing in the aisle “were thrown against the front door;” and the plaintiff’s husband testified that he “was thrown right against his seat in front of me,” and that the plaintiff was “moved” by the sudden stop to the “very edge” of the seat. The plaintiff further testified: “I did not feel any pains until I came pretty near the South Station, and then I felt pains in my abdomen from that time until I arrived home.” Her husband testified that he thought that the plaintiff “complained at the time of the occurrence, but the pains were not severe” “until five or ten minutes afterwards.” The next day the plaintiff went to see a doctor and at half past ten that night had a miscarriage. The doctor in question testified that in his opinion “the accident she met with on the train was the cause for the miscarriage. First, the shaking up, and second, the nervous shock. ... I found no marks on her body.”

This evidence, if believed, warranted a finding that the shaking up which the plaintiff received was not of the kind incident to ordinary travel on a steam railroad. The case comes within Work v. Boston Elevated Railway, 207 Mass. 447, where the earlier cases are collected, and Young v. Boston & Northern Street Railway, 213 Mass. 267, where the later cases are collected. For the latest case see Rust v. Springfield Street Railway, ante, 116.

The defendant contends that in spite of that the plaintiff did not make out a prima fade case, and it relies in this connection on that part of the decision in Timms v. Old Colony Street Railway, 183 Mass. 193, which is stated in these words, at page 194: “As to the apparent sudden stopping, there is nothing to show that it was not caused by some obstacle appearing suddenly in front, such as a horse and wagon or a person on foot, attempting to cross the track a short distance ahead. See Byron v. Lynn & Boston Railroad, 177 Mass. 303, and cases cited.” As we understand the defendant’s contention it is that if this statement is applied in the case at bar the plaintiff failed to make out a case of negligence because she failed to show that the sudden stopping of the train in the case at bar was not caused by some obstacle appearing suddenly in front of it. The plaintiff’s proof that the jolt in the case at bar was an unusual one took this case out of the rule of non-liability stated in Byron v. Lynn & Boston Railroad, ubi supra. Where a jolt is proved to have been an unusual one, a case of negligence is thereby made out and it is not necessary for the plaintiff to go farther (in order to make out a case of negligence) and show that the jolt was not in the ordinary course of the operation of the railroad. There is nothing to the contrary in the statement made in Timms v. Old Colony Street Railway, 183 Mass. 193, 194, relied on by the defendant.

The defendant’s second contention is that the case at bar comes within the doctrine laid down in Spade v. Lynn & Boston Railroad, 168 Mass. 285, and affirmed when that case was later before this court. See 172 Mass. 488. It is to be noted that the doctor did not testify (as the defendant has contended) that "the only history which he received from the plaintiff was her statement to him that she was frightened.” After testifying on his direct testimony that in his opinion the cause of the miscarriage was the accident on the train, the doctor, in answer to a question put by the defendant on cross-examination, said: “She told me that she was frightened.” On the doctor’s testimony and the facts testified to, the jury were warranted in finding that the shaking up of which the plaintiff complained broke or strained something within her which supported the child, and that that break or strain coupled with the nervous shock, caused the miscarriage. If they did so find, it was not a case of “mere fright, fear or mental distress occasioned by the negligence of” the defendant, although there were no marks on the outside of the plaintiff’s body, — to state the rule as it was stated when Spade v. Lynn & Boston Railroad, 168 Mass. 285, was first before this court. See Steverman v. Boston Elevated Railway, 205 Mass. 508. Nor does it come within the rule laid down when that case (Spade v. Lynn & Boston Railroad) came before the court the second time. See 172 Mass. 488. For all consequences of the trifling battery which the plaintiff there suffered she was allowed to recover. What she was not allowed to recover for at the second trial was the fright arising from the whole incident, not the consequences of the battery. See also Homans v. Boston Elevated Railway, 180 Mass. 456.

Joseph Wentworth, for the defendant. W. L. Allen, for the plaintiff.

By the terms of the stipulation between the parties judgment is to be entered for the plaintiff in the sum of $500; and it is

So ordered.

Fox, J., who, after a verdict for the plaintiff in the sum of $500, reported the case for determination by this court.