Dorne v. Adams

243 Mass. 438 | Mass. | 1923

Crosby, J.

An automobile truck, owned by the defendants, was left unattended on Maple Street in Springfield,' while the driver went into his boarding house to obtain his midday meal. The truck was left on a descending grade in the direction in which the truck was headed, which grade increased until it reached State Street, an intersecting street. Soon after the driver left the truck, it ran unattended down Maple Street, across State Street to its northerly sidewalk, and into the window of a store, striking the plaintiff and knocking her into the doorway of the store. It was agreed that the driver was acting within the scope of his employment for the defendants in stopping and leaving the truck at the point from which it started down the street.

The due care of the plaintiff is not in issue. The only question is whether negligence on the part of the driver could have been found. He testified that before leaving the machine he stopped it with the front wheel on the right side up against the^urbing, that he shut off the motor and set the emergency brakes. The plaintiff testified that after the accident she heard the driver say to an officer at the corner of Maple and State streets, that the car started because the brakes did not hold, and that he had complainedTof thein five or six times. This evidence was admitted by the trial judge solely to contradict the driver, who previously had been called as a witness by the plaintiff and had testified that the brakes were in good condition at the time the machine was left on the street, and that he had not complained about them.!

A witness called as an expert by the plaintiff testified in substance rEiíT^TEemñcEamsin of the car in all its parts was in good condition, the front wheel turned into the curbing, and the emergency brake set, it would not start unless interfered with by ome person; he further testified that, if The emergency brake was not set, the grade would force the car down the hill if the wheel was not turned into the curbing sufficiently to hold it. There was evidence that no person was in the vicinity of the car between the time when it was left and the time when it started. The jury could"have TounT notwitlistanding thTtestimony of the driver, that when he left the car the emergency brake was not set, that the wheel was not sufficiently turned against the curbing to hold it, and that it was in motion soon after. There was evidence that if the driver had set the emergency brake, stopped the engine, tinned the_wheel into the curbing and put the truck in reverse gear, it could not have run down the hill. Even if the testimony of the driver were uncontradicted, the jury could have disbelieved it. Ryan v. Fall River Iron Works Co. 200 Mass. 188, 191.

Upon the testimony most favorable to the plaintiff, and with the rational inferences which might be drawn therefrom, there was ample proof of negligence of the driver. As it could have been found that the car was left upon a descending grade without being properly secured, there was express evidence of negligence; the doctrine of res ipso loquitur has no application.

By the terms of the report judgment is to be entered for the plaintiff in the sum of $1,500.

So ordered.