ARTHUR C. SPOONER, administrator, vs. OLD COLONY STREET RAILWAY COMPANY

BRALEY, J. By the provisions of the St. of 1886, c, 140, now P. L. c. 111, § 267, if the life of a passenger is lost by reason of the negligence or carelessness of a corporation operating a street railway, or of the unfitness or gross negligence or carelessness of its servants or agents, while engaged in its business," his personal representatives may recover damages for the use of the widow or children, to be assessed within a minimum and maxi-mum limit according to the degree of culpability. Holland v. Lynn& Boston Railroad, 144 Mass. 425.

When the plaintiff's intestate became a passenger, the defendant engaged to provide proper facilities of transportation, including competent servants, and to carry him safely over its route to where at the end of the transit he would leave the car.

In occupying the seat which faced the fender at the rear, and in taking the position which he assumed after seating himself, the intestate did nothing unusual, or that could be found to have been inconsistent with ordinary prudence. The car was an open one provided for the accommodation of passengers, who by this arrangement were invited by the company to choose and use this seat among others, and the intestate, having been invited and permitted to use it, had the right to assume that it was suitable for him to occupy, and that he could ride there in safety while being transported.

It is a matter of common knowledge that either from inequalities of surface, or necessary curves in the construction of the roadbed, the cars of a railroad operated by steam or of a street railway may in passing over the track occasionally jolt or lurch without this motion being caused by a defect in the track or in the car. Whenever this occurs, though it may be disturbing and annoying, yet it is considered as fairly incidental to the mode of travel, and must be held to have been contemplated by the passenger. Stewart v. Boston & Providence Railroad, 146 Mass. 605. Holland v. West End Street Railway, 155 Mass. 387.

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McCauley v. Springfield Street Railway, 169 Mass. 301. Byron v. Lynn & Boston Railroad, 177 Mass. 303.

Inasmuch as there is no evidence that the roadbed was not properly constructed, or the car suitably equipped, or managed by competent employees, the plaintiff fails to show any act of negligence by the defendant under the statute, and if this also is true of the conduct of the motorman and the conductor the verdict must be set aside.

Upon taking his seat, the intestate sat with his legs crossed below the knees, and his arms folded. While in this position he was observed by the motorman and conductor, the latter especially noticing that he "seemed quite exhausted." From this evidence the jury could find that both knew he was on the rear seat in the situation described.

By reason of his weight and the distance from the outer rail of the track where his body was found, they further could have found that his ejection was due to the rapid swaying of the car. See Evensen v. Lexington & Boston Street Railway, 187 Mass. 77.

By ordinary carelessness by either the conductor or motorman, which if the intestate had survived would have been sufficient to support an action against the defendant, is not gross negligence for which the company is liable. Before taking up the evidence for the purpose of determining this question it may be well to refer to the meaning of the statutory term "gross negligence."

We have uniformly held that while something more than a mere want of common prudence is intended and must be proved, yet the difference is one of degree, and when a reckless or wilful disregard of consequences is manifest such conduct is evidence of great or gross negligence. Galbraith v. West End Street Railway, 165 Mass. 572, 579, 581, and cases there cited. Emery v. Boston & Maine Railroad, 173 Mass. 136, 139. Banks v. Braman, 188 Mass. 367.

The route of the car was about nine miles, over which it was expected to pass in thirty minutes, and with the usual delays to take on and leave passengers the average speed was eighteen miles an hour.

The witnesses differed as to the rate around the curve, those

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for the plaintiff estimating it to be from twelve to fifteen miles an hour or more, while the motorman and the conductor fixed it at from five to six miles. Accompanying their testimony was the evidence of the defendant's experts that a car moving from twelve to fifteen miles an hour would smoothly and safely pass over the curve, and if this testimony stopped at this point it would be evident that proof of recklessness by either of the defendant's employees was lacking. But when the conductor saw the body of the deceased passing through the air from the car to the ground he gave the usual signal to stop, and in a few seconds rang the emergency bell, and although the brake was immediately applied at a point about thirty to thirty-five feet from where the intestate fell, the car, with the brake set, ran over a dry rail about three hundred and sixty-five feet farther before it finally was stopped. Upon this conflicting evidence the jury could have found from the evidence of the conductor and the motorman that reducing the speed from eighteen to five or six miles when entering upon and in going around the curve indicated what rate in their judgment was reasonably proper.

Although the experts of the defendant were of opinion that if the car was moving from twelve to fifteen miles it would not take on an unusual or unsafe swaying motion, the weight to be given their evidence was for the jury in connection with the fact that if no greater rate of speed was employed than the maximum estimate given by them, the intestate would not have been subjected to an impetus by which he was instantly thrown from the car. But there was proof of a greater rate of speed even than that fixed by the experts as safe.

Two of the witnesses called by the plaintiff had observed the car as it passed them about a quarter of a mile distant from the scene of the accident, and according to the evidence of one it was twelve minutes late, and by the evidence of the other it was " going so fast " that he looked at his watch to ascertain the time.

Another witness, who was the only passenger besides the intestate, gave evidence that between the time the signal was given and the time the car stopped perhaps ten seconds elapsed. If his evidence was believed then within this period the car had

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moved a distance of at least three hundred and sixty-five feet, which would indicate that it was running slightly in excess of twenty miles an hour.

From the testimony of these witnesses an inference fairly could be drawn that as it approached the curve the car not only was running to make up time, but its velocity was greater than its customary speed of eighteen miles.

This view would be materially corroborated and strengthened by the further uncontroverted fact that upon application of the brake to a substantially empty car, and under such conditions that it must have effectually gripped the wheels, its momentum had become such that it continued under way for the distance already stated.

We are of opinion that it was open upon all the evidence for the jury to find that an old man plainly seen to be in somewhat feeble health had been accepted as a passenger, invited and pe rmitted to take a seat in a place provided for this purpose, but which might become dangerous if an undue rate of speed was maintained in passing over this curve, and thereafter in reckless, or wilful, or wanton, disregard of these conditions, the car was so managed and controlled by those in charge as wrongfully to cause his death.

The defendant suggests that the present case should be governed by Witherington v. Lynn & Boston Railroad, 183 Mass. 596, but the facts are widely dissimilar. In that case the intestate fell from an open car while standing near the edge of the rear platform, and the track though curved was nearly straight. It is distinctly said in the opinion, "This is not a case where the speed was so great as to result in any unusual motion or jar of the car," and it also was held that there was no negligence on the part of the defendant in not warning the passenger of the obvious danger of standing close to the side of a rapidly moving car. Here it could be found that the deceased did not fall, but by the excessive force of the lateral motion was lifted bodily from his seat, and thrown out of the car.

In the opinion of a majority of the court the order must be,

Exceptions overruled.