Brasslavsky v. Boston Elevated Railway Co.

This is an action to recover compensation for personal injuries sustained by a passenger on one of the *404defendant’s cars. The declaration alleged that while the plaintiff was such passenger “ a fuse blew out, on account of the negligence of the defendant, its servants or agents ” in failing to exercise such inspection of the car as would have revealed the defective condition of the fuse.

There was evidence tending to show that there was “ a shock like a cannon,” a loud noise and a fire, and that the light in the car went out. Several witnesses testified in various forms of words to the noise and fire and smoke in the car. The plaintiff called as a witness a foreman of the defendant in charge of inspection of electrical equipment who testified that there was nothing about the car in question to show that a fuse blew out. His evidence tended in other respects to show that no fuse blew out. The judge directed a verdict for the defendant.

It must be held on this record that there was no evidence of the blowing out of a fuse. That was the sole allegation in the plaintiff’s declaration concerning negligence of the defendant. It was said in Granara v. Jacobs, 212 Mass. 271, 275, “ We must take it that the ruling of the judge was made with the declaration before him and in view of its averments. Wallace v. New York, New Haven & Hartford Railroad, 208 Mass. 16. The doctrine of Ridenour v. H. C. Dexter Chair Co. 209 Mass. 70, 78, frequently has been applied to sustain a ruling made at a trial, but not, so far as we have found, for the purpose of reversing a ruling apparently made upon the issues raised by the pleadings.” That principle is precisely applicable to the case at bar. Cotter, petitioner, 237 Mass. 68, 72. Park & Pollard Co. v. Agricultural Ins. Co. 238 Mass. 187, 195. It is not necessary to consider whether there was evidence of other negligence ón the part of the defendant for the reason that no other negligence was charged in the declaration.

Verdict to stand.