Benjamin v. Holyoke Street Railway Co.

35 N.E. 95, 160 Mass. 3, 1893 Mass. LEXIS 2

• Court: Massachusetts Supreme Judicial Court
• Decided: October 20, 1893
• Status: Published

Opinion

Allen, J.

The case which the plaintiff’s evidence tended to support was as follows. Appleton and Beech Streets crossed each other at right angles. There was an electric street railway on Appleton Street. The plaintiff was driving on Beech Street towards Appleton Street, saw a car pass, thought it would be safe to cross, and drove on to Appleton Street as if to cross it, the roadbed being thirty-four feet wide. As she got almost upon the railway track another car was coming, her horse became frightened, she turned him so as to go along on Appleton Street by the side of the track, the car came following on, the motorman was sounding the gong, and when the car overtook her and was just alongside the gong was sounded again, the horse sprang to the side of the street, and the accident occurred. The view from Beech Street of that part of Appleton Street on which the car was coming was obscured by an orchard and a barn.

The defendant contends that there was no evidence of the plaintiff’s due care. The first particular assigned is that the horse which she was driving was manifestly an improper one for her to undertake to manage. This however was for the jury, on all the evidence. The next particular assigned is that she failed to look to see if a car was coming; and a special instruction was asked, based on the assumption that she failed to look. This also was for the jury. The accident did not occur from a collision at the street crossing. The plaintiff had passed that point, and was proceeding on Appleton Street. The court rightly refused to instruct the jury that a mere failure to look would prevent her from recovering. This has been so held even in cases of collision. Shapleigh v. Wyman, 134 Mass. 118. French v. Taunton Branch Railroad, 116 Mass. 537. The question was left to the jury, with proper instructions.

The defendant further contends that there was no evidence of its own negligence. But the jury might well find negligence on the defendant’s part from the testimony tending to show that, the car was not stopped nor its speed slackened, and that the gong was sounded while the plaintiff was in obvious difficulty from, the fright of her horse. The defendant contends that it was not bound to stop its car or to stop the noise of the gong. But the omission to do so, under the circumstances, might well be deemed to show carelessness. The use of the street for electric cars and by the general public was concurrent; and the defendant was bound in using the street to have reference to its reasonable use by others. Commonwealth v. Temple, 14 Gray, 69. Driscoll v. West End Street Railway, 159 Mass. 142.

It was not necessary specially to set forth in the declaration the injudicious sounding of the gong, as an element of negligence. Sounding the gong is an incident to the running of the car, and the general averment of negligence in the running of the car was sufficient to include it. Eaton v. Fitchburg Railroad, 129 Mass. 364.

The objections to the questions put to the doctor are not sufficiently serious to require discussion. There was no error in allowing them to be put.

* Exceptions overruled.

The plaintiff introduced evidence tending to show that she struck the ground upon her stomach; and she contended that a miscarriage which she suffered ten or twelve days after the accident, having been confined to her bed during that time, and also subsequent uterine trouble, were the result of the accident.

A physician was allowed to answer the following questions, put by the plaintiff, against the defendant’s objection and exception :

Q. “ If a woman was with child and met with an accident so that she was thrown over the footboard of a wagon by a runaway horse, thrown to the ground on her stomach or side, went home and soon after went to bed, and if she was confined to the bed for ten or twelve days, and if at the end of that time she suffered a miscarriage, would the facts if true be an adequate cause for a miscarriage ? ” A. “It would be considered an adequate cause for the miscarriage.”

Q. “ If a woman was with child and was thrown over the dashboard by a runaway horse, and struck upon her stomach or her side, that is, thrown over upon the ground, would it be possible for the foetus to be killed ? ” A. “ It would be possible.”

Q. “In what way?” A. “It might be killed by direct violence of the blow, or by a separation of the placenta from the womb. The placenta is what carries the blood from the inside of the womb, from the mother’s body to the child’s body. In a sudden jar, that might be separated, so that the foetus would derive no more blood from the mother. It might possibly be such an injury to the womb itself as to produce a miscarriage from that injury.”

Q. “If the child was killed by this fall of the mother we have described, from a team to the ground, and a miscarriage took place ten or twelve days after, would the body of the foetus be decomposed necessarily ? ” A. “ No, not necessarily.”

Q. “ Is the presence of flesh on the woman conclusive evidence whether she has uterine trouble or not?” A. “It is not. A great many women increase in. flesh when they have uterine trouble, as the result of certain uterine troubles.”