284 Mass. 200 | Mass. | 1933
These two actions of tort for personal injuries were tried together in the Superior Court to a jury, and are against the owner and the operator respectively of a motor vehicle from which the plaintiff, while a passenger for hire and not as a guest, was thrown and run over while the same was being operated on a public way in Cummington, Massachusetts, on July 20, 1931. At the close of the evidence the defendants filed a request for an instruction to the effect that if the defective lights contributed to the cause of the injury the plaintiff could not recover. This request was granted by the judge and the jury were so instructed. "Before the case was submitted to the jury both counsel for the plaintiff and defendants agreed that the sole issue to be determined was whether there was any lack of care on the part of the plaintiff, irrespective of his employment, or negligence on the part of the defendant.” At the close of the plaintiff’s evidence as to liability, the defendants offered no evidence. The defendant in each case filed a motion for a directed verdict on each count of the plaintiff’s declaration upon the law and the evidence. The motions were denied and the jury returned a verdict for the plaintiff in each case.
All the material evidence is reported and it discloses that on July 20, 1931, the plaintiff was injured while riding in an automobile operated by the defendant Richard' Farashian, not as a common carrier of passengers, on the Berkshire Trail in Cummington, Massachusetts. The evidence warranted the jury in finding that the plaintiff was riding with the defendant Richard Farashian under a contract of hire with both defendants, which included transportation from Northampton, Massachusetts, to Troy, New York, and, when his “painting job” was finished, as it was on the day of the accident, transportation, personally with his ladders and all his other painting equipment, from Troy back to Northampton. The evidence is uncontradicted that the defendant Richard Farashian called for the plaintiff in Troy on the day of the injury, and that in the early evening of that day they left Troy for Northampton in an automobile owned by the defendant Sarkis Farashian, and operated by Richard, at the request and with the permission of the defendant Sarkis Farashian; that the automobile was a touring car with a left front drive, and that the wife of Richard was seated on the left rear side and the plaintiff was seated on the right rear side. There was evidence offered and, so far as the report shows, received, that the plaintiff’s ladders and other painting equipment were tied on the automobile on the right side; that considerable difficulty was experienced with the lights of the automobile after it had become dark; that when they got to Pittsfield something went wrong with the lights. The testimony was conflicting as to whether they went out entirely, but they did become very dim and if they were not out completely they were useless. At Pittsfield the party stopped at one or two different garages to have the lights repaired but because it was Sunday the driver was not able
The defendants rely on the evidence that the night was foggy and the road was over the Berkshire Trail from Pitts-field to Northampton; that when trouble was first had with
The plaintiff does not contend, as we understand it, that he could recover “if the defective lights contributed to the cause of the injury,” and the judge so instructed the jury, without any exception of the plaintiff. As above said he relies for the maintenance of his right of action upon the evidence which warranted the jury in finding that the proximate cause of the injury to the plaintiff was the taking of the foot of the defendant Richard Farashian from the brake at a time when the automobile was stopped at a down grade, on a curve in the road, to permit the driver’s wife to get out of the automobile, thereby allowing the automobile to start again suddenly. It is plain that the removal of the defendant’s foot from the brake in the circumstances hereinbefore stated was a negligent act; and there is no evidence that any act of the plaintiff was a contributing cause of that negligent conduct. We think the fact that the automobile was driven without lights in
So ordered.