The first question, therefore, will be, whether the captain and crew of the boat had the degree of ability and skill thus indicated; and if it be found that they had not, then the second question will be, whether the want of it contributed in any degree to the actual disaster: but if either of these be found for the carrier, it will be decision [decisive?] of the cause. It seems, therefore, that ... the cause ought to be put, on these principles, to another jury.

Judgment reversed, and a venire de novo awarded.[[45]]

Section II
Interests Secured

SPADE v. LYNN & BOSTON R. CO.
Supreme Judicial Court, Massachusetts, May 19, 1897.
Reported in 168 Massachusetts Reports, 285.

Tort, for personal injuries occasioned to the plaintiff by the alleged negligence of the defendant. The declaration contained three counts.

The third count[[46]] alleged that while the plaintiff was a passenger in the defendant’s car, and in the exercise of due care, “one of the defendant’s agents or servants, in attempting to remove from the said car a certain person claimed and alleged by said defendant’s agent to be noisy, turbulent, and unfit to remain as a passenger in said car, conducted himself with such carelessness, negligence, and with the use of such unnecessary force, that said agent and servant, acting thus negligently, created a disorder, disturbance, and quarrel in said car, and thereby frightened the plaintiff and subjected her to a severe nervous shock, by which nervous shock the plaintiff was physically prostrated and suffered, and has continued to suffer, great mental and physical pain and anguish, and has been put to great expense.”

The defendant’s answer was a general denial.

Trial in the Superior Court, before Mason, C. J.

The plaintiff testified, among other things, that the conductor in putting off an intoxicated man twitched him in such a way as to push another intoxicated man over on to the plaintiff. The evidence for the defendant tended to disprove plaintiff’s claim that either of the intoxicated persons came in contact with her, or assaulted her.