In an action against a street railway company under St. 1886, c. 140, to recover for the death of the plaintiff's intestate by reason of the gross negligence or carelessness of its servants or agents, with a count at common law to recover for the injury and conscious suffering of the intestate, it appeared that the plaintiff's intestate was standing on the rear platform of a short car of the defendant, that there were no gates on the car, that, as the car was passing from a turnout to return to the main track at a rate of speed of from three and one half to four miles an hour, there was a swaying or jar, and the plaintiff's intestate fell or was thrown from the car, was found unconscious beside the track and died within twenty-four hours. Held, that the evidence would not justify a finding that the accident was due to negligence of the defendant or of its servants.
BARKER, J.
Upon full consideration of the evidence we are of opinion that it would not justify a finding that the defendant was negligent. The car was a short one running upon a single track, and had no gates upon the platforms. But such cars are common. There is no statute which forbids their use or requires them to be equipped with gates. The use of such a car was not negligence. The plaintiff's intestate was thrown to the ground by a swaying, or jolt, or lurch of the car, as it returned to the main track from a siding. Such motions of street cars are of common and frequent occurrence, and are to be expected to a greater or lesser degree whenever the car passes from one track to another, and so are of the class of usual and unavoidable incidents in the use of cars upon the streets. Holland v. West End Street Railway, 155 Mass. 387. McCauley v. Springfield Street Railway, 169 Mass. 301. Unless they are unusual in degree and caused by some defect in the car or the track or by some unusual or dangerous rate of speed, they furnish no evidence of negligence on the part of the carrier or of its servants. See Baltimore Yorktown Turnpike Road v. Cason, 72 Md. 377; Francisco v. Troy Lansingburgh Railroad, 78 Hun, 13. There was no evidence that the jolt was due to any defect in the car or in the track, or that the car was proceeding at an extraordinary speed. The witnesses who gave an estimate of the speed placed it at from three and one half to four miles an hour, and there was no one who testified that the rate was either unusual or dangerous. The jar felt by the different witnesses was not so great as to be unusual, or as to justify a finding that it was due to negligence of the defendant or of its servants.
Exceptions overruled.