Evidence, Judicial notice, Force of words. Negligence. Railroad. It is a matter of common knowledge that from time to time the tracks of steam railroads must be repaired and bridges must be replaced, and that in the performance of this work it may be necessary to use crossovers from one main track to another.
It is a matter of common knowledge that in the proper operation of a passenger train on a steam railroad there may be jerks and lurches.
In considering the description of an accident by a witness little if any weight is to be given to expletive or declamatory words or phrases which appear to have been used in an exaggerated or distorted sense.
If a passenger in the smoking car of the train of a steam railroad, knowing but unmindful of the facts that the train is about to pass over a bridge that is undergoing repairs where there are double tracks and will have to pass by means of a crossover from one track to the other, that when the car strikes the switch there will be more or less of a jar, its force depending upon the speed of the train, and that the train is moving swiftly, and being unable to find a seat in the smoking car where five or six passengers are standing in the aisle, stands immediately inside the threshold of the doorway leading to the back platform of the car, with his back against the door, which is open, and his hands down at his sides, when there come a lurch and jar of the train which throw him against another passenger and then out on the platform and backward to the ground, where he is injured, he has not exercised due care and cannot recover from the railroad company for his injuries, even if the company was negligent.
RUGG, J.
It is at least difficult to see how, upon this testimony, there was any negligence on the part of the defendant. Timms v. Old Colony Street Railway, 183 Mass. 193. It is a matter of common knowledge that tracks of steam railroads must be repaired and bridges replaced from time to time, and that, in the performance of this work, it may be necessary to use crossovers from one main track to another. It is also common knowledge that in the performance of the duty resting upon steam railroads of rapid and prompt transportation, even in the exercise of the high degree of care required of them, there may be jolts and lurches in the management of trains. Weinschenk v. New York, New Haven, Hartford Railroad, 190 Mass. 250. Byron v. Lynn Boston Railroad, 177 Mass. 303. There is nothing to show that the jar in question resulted from any negligent act on the part of the defendant, either as to speed or construction of car or track. The speed was described as "swift," and the jar or lurch as "quite violent," "terrible," "awful," "very severe," and "unexpected." But mere expletive or declamatory words or phrases as descriptive of speed or acts, unaccompanied by any evidence capable of conveying to the ordinary mind some definite conception of a specific physical fact, and depending generally upon the degree of nervous emotion, exuberance of diction, and volatility of imagination of the witness, and not upon his capacity to reproduce by language a true picture of a past event, are of slight, if indeed they are of any, assistance in determining the real character of the fact, respecting which they are used.
Passing to the other branch of the plaintiff's case, there are greater difficulties in his way. He knew of the existence of the crossover, and that it had been there for several days, and that all trains going to Beverly from Salem were obliged to use it, and that the going upon the crossover would cause more or less jar to the train. He also testified that if he had supported himself by his hands he would not have been thrown off his balance. He took his position within, at farthest, three inches from the open door of the car, although he might have stood farther in the car in a place of perfect safety, and he failed to investigate whether there were vacant seats in other cars of the train than the one in which he was standing. It is manifest that no injury would have been sustained by him if he had been seated. It has been said that one who elects to stand in a steam train, when there are vacant seats, cannot recover for an accident which he would not have suffered except for his standing position. Farnon v. Boston Albany Railroad, 180 Mass. 212. To be either upon the platform of a car or just within its threshold on the way to and in search of a permanent place of safety within a car is quite different from voluntarily taking one's stand for the journey barely inside an open door, with the knowledge that by reason of construction repairs, reasonably and necessarily prosecuted, so far as appears, the train must pass over a switch under such circumstances as almost necessarily to cause some disturbance to the train. The plaintiff testified that he intended to go back into other cars of the train, but, without any disclosed reason for so doing, he stood in this position of danger while the train passed a distance of three quarters of a mile. Under the particular circumstances of this case, with the plaintiff's special knowledge of conditions, he cannot be said to have been in the exercise of such care as ordinary prudence requires.
Exceptions sustained.