244 Mass. 588 | Mass. | 1923
This is an action of tort to recover damages for personal injuries received by the plaintiff, when an automobile in which he was riding was in collision with an automobile operated by the defendant. At the close of all the evidence the defendant moved that a verdict be ordered for her and duly excepted to the refusal of the court to do so.
It appeared by the evidence introduced by the plaintiff, and the jury were warranted in finding, that at about nine o’clock in the morning of August 12, 1919, Louis Chandler, foreman of the repair department of the Goodell Garage in Salem, and one Saffer, an employee of that garage, took out an Essex car belonging to one Tierney to locate rattles and noises in the car;, that they saw the plaintiff in front of the Marblehead car barn, and invited him to ride to meet a street car which the plaintiff was to operate on its return trip from Marblehead to Salem; that Chandler and the plaintiff had known each other for some, time; that the plaintiff knew that 'Chandler was an employee-at the Goodell Garage; that the plaintiff had upon former occasions ridden in other automobiles operated by Chandler; that the plaintiff thereupon got into the rear seat of the automobile-, and Chandler then drove easterly along Pleasant Street toward Marblehead, at the rate of twenty or twenty-five miles an hour; that as the car proceeded down Pleasant Street toward Marble-head and reached a part of the road known as “the stretch” it ran at a speed of thirty-five miles an hour; that the plaintiff.'
It could be found that Smith Street enters Pleasant Street on the south side but does not cross it; that opposite the junction of Smith and Pleasant streets, and on the northerly side of Pleasant Street is an unused roadway entering Pleasant Street from the north, in the middle of which and protruding slightly into Pleasant Street is a large tree; that a single line of street railway tracks is on the southerly side of Pleasant Street. It further appeared from the testimony of the plaintiff and his witnesses, and could be found, that the plaintiff and those in the car with him first saw the car of the defendant when they were one hundred feet from the corner of Smith Street; that the car of the defendant was then on Smith Street one hundred and fifty feet from Pleasant Street, and coming toward Pleasant Street at the rate of twenty to thirty-five miles an hour; that it then appeared to “slack up;” that the driver of the plaintiff took this action as a signal for him to go by and proceeded right along; that when the defendant got within twenty feet of Pleasant Street the car “surged ahead,” gave an “awful start;” that at the time the automobile in which the plaintiff was riding was a little to the right in the middle of Pleasant Street, opposite Smith Street, just ready to go across; that the defendant’s car struck the car in which the plaintiff was riding about five inches forward of the right rear wheel; that the impact caused the car to leave the ground and threw it up against the tree.
The evidence of the witness for the defendant warranted a finding that the defendant did not drive her car into Pleasant Street with an “awful start” and surge; that she did not run into the car in which the plaintiff was riding; that the driver of the last named car drove at an excessive rate of speed, in an
By the requests for rulings numbered 1, 2, 3, 4, 5 and 6 the-defendant contends that the plaintiff cannot recover if the driver of the car was negligent, because he could not lawfully invite the plaintiff to ride with him, and any one riding with him was. not a guest but a trespasser. There is a difficulty of fact against this contention in that there is no evidence of the terms of the bailment of the owner of the car or of instructions by the GoodelL Garage to its foreman, Chandler, as to the use of the car while-it was being tested and repaired for body rattles. Norris v. Litchfield, 35 N. H. 271. Assuming the driver was without authority to drive the car while the plaintiff was a guest of his but not of the owner of the car, that fact and the act of driving the-car with the trespassing guest in it was at most a condition and a circumstance, and not a cause which contributed to the collision and accident. Norris v. Litchfield, supra. Sughrue v. Booth, 231 Mass. 538. See Newcomb v. Boston Protective Department, 146 Mass. 596; Moran v. Dickinson, 204 Mass. 559; Bourne v. Whitman, 209 Mass. 155, 167-170.
The defendant further contends in argument and in her requests for rulings numbered 2 and 5 that the negligence of the-driver, if found, was imputable to the plaintiff because they were engaged in a joint enterprise, in that the plaintiff accepted and became party to the wrongful act of Chandler in extending-his invitation to the plaintiff to ride in the car upon the plaintiff’s business, and cites Adams v. Swift, 172 Mass. 521, Beaucage v. Mercer, 206 Mass. 492. We do not think the acceptance of an. invitation to ride in the circumstances disclosed by the evidence constitutes an engagement in a joint enterprise, even if the person, accepting has reason to know that the person inviting is acting in-so doing without the scope of his authority; because there is lacking in the facts the essential elements which constitute in the law of negligence a joint enterprise: that is, the evidence does not warrant a finding that the plaintiff had an equal right with the driver-
Exceptions overruled.