Gilchrist Et Al. v. Boston Elevated Ry

CROSBY, J. These are actions brought by the several plaintiffs to recover for personal injuries, alleged to have resulted from the derailment of a trailer car on which they were passengers. The actions were tried together in the superior court. Under a stipulation entered into by the parties the only question submitted to the jury was whether or not the accident in which the alleged injuries occurred was caused by negligence of the defendant. The jury found that the accident was so caused. The trial Judge at the request of the defendant reported the cases to this court. The plaintiffs did not introduce any evidence as to the cause of the accident, but relied upon a presumption of negligence arising from the accident itself. The defendant introduced evidence to show that the accident was caused by a bolt falling or being knocked into a switch over which the car was passing, and that it was not from any part of the defendant's equipment; it suggested that the bolt had been knocked into the switch by a passing motor vehicle. The defendant's first exception is to the exclusion of certain specifications signed by an attorney of one of the plaintiffs. The defendant contends that the specifications in question contained statements that the accident was caused by a bolt in the switch, and that the exclusion of the specifications, and the failure of the plaintiffs to introduce evidence as to the cause of the accident, gave the plaintiffs the benefit of the doctrine of res ipsa loquitur and thereby prejudiced the defendant. The attempt of the plaintiffs to explain the cause of the accident did not deprive them from relying upon the doctrine of res ipsa loquitur. McDonough v. Boston Elevated Railway, 208 Mass. 436, 440, 94 N.E. 809; Stangy v. Boston Elevated Railway, 220 Mass. 414, 416, 107 N.E. 933. Furthermore the record does not show the contents of the excluded specifications, the defendant's purpose in offering them in evidence, or their significance upon any issue involved at the trial. The only offer of proof was: 'I offer to show that that certain specification stands on the same footing as an answer to an interrogatory in this case.' As it does not appear from the record that the defendant has been prejudiced by such exclusion, this exception cannot be sustained. 'The burden is upon the excepting party to set out enough in the bill of exceptions to show that he has suffered harm by an erroneous ruling.' Reilly v. Selectmen of Blackstone (Mass.) 165 N.E. 660, 663; Posell v. Herscovitz, 237 Mass. 513, 517, 130 N.E. 69.