Negligence, Street railway, In use of highway, Res ipsa loquitur. Evidence, Presumptions and burden of proof, Relevancy and materiality.
The mere fact that a street railway car collided from the rear with a team which was proceeding along its steady and undeviating course in front of the car is not evidence of negligence of the street railway company which was operating the car.
At the trial of an action of tort for damages resulting from a collision between a horse and wagon of the plaintiff and a street railway car operated by the defendant, it is proper to exclude a question, asked of the motorman in cross-examination by the plaintiff, "How long have you been in the employ of the" defendant?
RUGG, C.J.
This is an action to recover property damages arising from a collision on a public way between a hack and horses belonging to the plaintiffs and a trolley car operated by the defendant upon its tracks. There was evidence tending to show that the trolley car ran into the hack as it was proceeding along its steady and undeviating course in front of the car. There was other evidence tending to show that the hack was driven suddenly from the left side of the street upon the tracks so near to the front of the moving car that it was impossible for the motorman to avoid the collision. On this state of the evidence the jury were instructed fully as to the due care of the servant of the plaintiffs in charge of their property and the negligence of the motorman of the defendant, and further that the doctrine of res ipsa loquitur had no application. In this there was no error. The mere occurrence of the collision on the highway was no evidence of the negligence of the defendant. This is the rule of our own cases. Niland v. Boston Elevated Railway, 213 Mass. 522. Singer Sewing Machine Co. v. Springfield Street Railway, 216 Mass. 138. Williams v. Holbrook, 216 Mass. 239. Timms v. Old Colony Street Railway, 183 Mass. 193. Stangy v. Boston Elevated Railway, 220 Mass. 414. McNiff v. Boston Elevated Railway, 234 Mass. 252. Parsons v. Boston Elevated Railway, 236 Mass. 415. Sandler v. Boston Elevated Railway, 238 Mass. 148. Kinnarney v. Milford Uxbridge Street Railway, 241 Mass. 127, 130. Baglio v. Director General of Railroads, 243 Mass. 203, 207. Rizzitelli v. Vestine, 246 Mass. 391, and cases there collected.
As was said in Wing v. London General Omnibus Co. 2 K. B. 652, 663, 664, "the mere occurrence of such an accident is not in itself evidence of negligence. Without attempting to lay down any exhaustive classification of the cases in which the principle of res ipsa loquitur applies, it may generally be said that the principle only applies when the direct cause of the accident, and so much of the surrounding circumstances as was essential to its occurrence, were within the sole control and management of the defendants, or their servants, so that it is not unfair to attribute to them a prima facie responsibility for what happened. An accident in the case of traffic on a highway is in marked contrast to such a condition of things. Every vehicle has to adapt its own behaviour to the behaviour of other persons using the road, and over their actions those in charge of the vehicle have no control. Hence the fact that an accident has happened either to or through a particular vehicle is by itself no evidence that the fault, if any, which led to it was committed by those in charge of that vehicle." St. Louis v. Bay State Street Railway, 216 Mass. 255, 257.
It was for the jury to say under appropriate instructions whether the plaintiffs had sustained the burden of proof resting upon them. The case was left to the jury under full and apt instructions covering all issues.
Evidence as to the length of time during which the motorman had been in the employ of the defendant was excluded rightly. Lang v. Boston Elevated Railway, 211 Mass. 492.
Exceptions overruled.
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