Evidence, Opinion, Matters of common knowledge, Materiality. Carrier, Of passengers Negligence. Elevated Railway. Pleading, Civil, Variance.
An ordinary observer may testify as to his conclusions of fact at the time of his observation in regard to a condition of things which can be understood by men in general and which cannot be reproduced before the jury as it appeared to the witness.
In an action by a woman passenger against a corporation operating an elevated railway for personal injuries caused by the alleged failure of the defendant to limit or control the crowd of passengers upon a platform of one of its terminal elevated stations, the plaintiff on her cross-examination of a motorman of the defendant may ask him whether, if three cars each unloaded thirty-three passengers upon a certain part of the platform, it would make a fair sized crowd on that platform.
In an action by a woman passenger against a corporation operating an elevated railway for personal injuries caused by the alleged failure of the defendant to limit or control the crowd of passengers upon the platform of one of its terminal elevated stations, the plaintiff, on her cross-examination of the chief inspector of the division of the defendant's railway in which the accident occurred, may ask him whether the size of the crowd on the platform of the station could be controlled by controlling the number of persons allowed to enter the station through the turnstiles, and by regulating the number of surface cars and the number of elevated trains allowed to go into the station. If the answer to this question is matter of common knowledge the defendant is not harmed by its admission, and, if not such matter, it is admissible.
In an action by a woman passenger against a corporation operating an elevated railway for personal injuries caused by the alleged failure of the defendant to limit or control the crowd of passengers upon the platform of one of its terminal stations, by reason of which the plaintiff in attempting to go from a surface car to take an elevated train was pushed off the platform and fell into the pit containing the adjoining surface car track, and was injured, the plaintiff offered to prove that at some time after the accident the defendant had extended its platform so as to cover twenty-five feet in length near the place where the plaintiff fell. The defendant's counsel had admitted that it was physically possible to increase the platform in this way but refused to concede that it was practically possible. The plaintiff offered the evidence to show that the increase of space was practically possible. The judge admitted the evidence for this limited purpose, instructing the jury that it was not evidence of negligence on the part of the defendant. Held, that the evidence was competent for the limited purpose for which it was admitted.
In an action by a woman passenger against a corporation operating an elevated railway for personal injuries caused by the alleged negligence of the defendant in failing to provide for limiting or controlling the crowd of passengers upon the platform of one of its terminal stations, the presiding judge properly may refuse to allow the defendant to ask its superintendent of the division where the accident occurred whether in determining the plan of operating such a railway it is proper to take into consideration the desire of the travelling public to take their chances in the crowd rather than to be kept back, where such desire can be taken into consideration without interfering with safety in the operation of the railway, such inquiry not only being immaterial but tending to distract the attention of the jury from the issue of the defendant's negligence.
In an action by a passenger against a corporation operating an elevated railway for personal injuries from being pushed off an overcrowded platform at a station, it is evidence of negligence on the part of the defendant that it failed to provide a sufficient number of competent servants to guard its passengers from the dangers incident to the platform being overcrowded.
In an action by a passenger against a corporation operating an elevated railway for personal injuries from being pushed off an overcrowded platform at a terminal station of the defendant when attempting to go from a surface car to take an elevated train, it is evidence of negligence on the part of the defendant that the portion of the platform where passengers alighted from surface cars was too small to take care of the passengers who were landed on it; and it also is evidence of such negligence that a guard who should have been on this part of the platform to prevent pushing and crowding, if he could, was not there when the plaintiff was injured.
In an action by a passenger against a corporation operating an elevated railway for personal injuries from being pushed off an overcrowded platform at a terminal station of the defendant when attempting to go from a surface car to take an elevated train, if there is evidence that the portion of the platform where passengers alighted from surface cars was too small for the purpose and might have been made larger, this is evidence of negligence on the part of the defendant in the construction or maintenance of its platform on which the plaintiff is entitled to go to the jury, although this ground of negligence was not alleged in the declaration, if the objection of the variance was not taken at the trial.
If a corporation operating an elevated railway at certain hours of every week day assembles on the platforms of its stations such large crowds of passengers necessarily going in opposite directions, that on one of these occasions a passenger on the outside of the crowd, in spite of all he can do, is pushed off the platform into the adjoining pit in which the tracks are laid, and the accident is due solely to the ordinary crowding which occurs during rush hours, the railway company is liable to the passenger for his injuries thus caused.
LORING, J.
1. The exception must be overruled to the admission of the question: "If three cars unloaded thirty-three passengers each upon the platform between Nos. 1 and 2 would it make a fair sized crowd on that platform?"
An ordinary person does not know from a statement of the facts whether the unloading of three cars containing thirty-three passengers each would make a fair sized crowd on the platform in question, the dimensions of which were in evidence. That is a conclusion relating to matters which are capable of being understood by men in general and which cannot be reproduced before the jury precisely as they appeared to the witness. The evidence comes within the rule laid down in Commonwealth v. Sturtivant, 117 Mass. 122.
2. We are of opinion that the judge could allow the plaintiff to ask James, the defendant's inspector of surface cars on the division in question, whether the crowd on the platform of the station could be controlled by the number of incoming surface cars allowed to go into the station, by the number of persons allowed to go into the station through the turnstiles, and by the number of incoming elevated trains allowed to go into the station; and that by controlling them in these ways the size of the crowd in the station could be controlled. The issues being tried were in substance: First, was the defendant negligent in allowing the crowd to gather which did gather on the platform at the time in question? Second, was it negligent in the means which it adopted to control it? Third, was it negligent in the area of its platforms in connection with the length of tracks for cars to stand at one time in delivering and taking on passengers? The means which it had to prevent a crowd from gathering on the platform was a fact to be proved. The only objection made by the defendant is that every one knows the facts proved. If they do, the defendant was not injured by the admission of the evidence. If they do not, the evidence was admissible.
3. The next exception argued is the ruling of the judge that it was competent for the plaintiff to prove that at some time since the accident the defendant had extended its platform so as to cover twenty-five feet in length of the inner end of track 1. This was offered by the plaintiff to show that it was not only physically possible to increase the platform in this way, which the defendant's counsel admitted, but that it was practically possible, having regard to the conduct of its business, which the defendant's counsel refused to concede. The judge ruled that it was competent for the purpose for which it was offered, but not for the purpose of showing negligence on the part of the defendant at the time in question. For this purpose, under this condition of the evidence and of the contentions made by the defendant, the evidence was competent. No objection was made at the trial that the negligence alleged in the declaration did not cover this. For that reason this objection, if well taken, is not open now.
4. One of the questions on trial was whether the defendant had been negligent in providing for the safety of passengers on its platforms arising from the dangers incident to the platforms being overcrowded. To go into a consideration of the propriety on the part of the defendant's officers of consulting the desires of the travelling public to be carried rapidly when that could be done "without interfering with safety in the operation of the railroad" was not only not material to the issue on trial but would have tended to distract the attention of the jury from that issue. The presiding judge was right in excluding the question put to Pasho.
5. The plaintiff had a right to go to the jury on the doctrine of Kuhlen v. Boston Northern Street Railway, 193 Mass. 341, and also on these two further grounds: (1) That the platform in question was too small to take care of the passengers who landed on it; and (2) that the guard (Taylor by name) who should have been on this platform was not there.
6. There was evidence that the platform was too small for the passengers who could be and were delivered on to it. The objection that this ground of negligence was not alleged in the declaration was not taken at the trial, as we have said before. The third ruling asked for was rightly refused.
7. It is hard to understand the contention of the defendant in insisting that the second part of the eighth ruling asked for by it should have been given. The jury were warranted in finding that the two crowds going in opposite directions were so great that the plaintiff was without her fault thrown off the platform on which the defendant placed her, into the pit of No. 1 track. Its contention under the eighth request for a ruling is that if this is the ordinary crowding which occurs during rush hours and the accident is due to that alone, it is not liable. But in our opinion that would make it liable. We do not see how a jury could find that the defendant company was not negligent when it continued to assemble on its platforms, at certain hours in the day, such large crowds, necessarily going in opposite directions, that those on the outside, in spite of all they can do, are carried off the platform into the trench in which the tracks are laid.
Exceptions overruled.