274 Mass. 110 | Mass. | 1931
These are actions of tort. One was brought by Everett B. Fox to recover damages for personal injuries sustained by him and for the destruction of his motor truck, and to recover expenses incurred by him for nursing, care and medical attention furnished his minor son, Leigh-ton D. Fox. The other action was brought by the minor son by his next friend to recover damages for his personal injuries. The evidence was conflicting, but it could have been found that a motor truck, owned and operated by the adult plaintiff, in which the minor plaintiff was sitting, was struck by a motor truck, owned and operated by one Beraldi; that as a result both plaintiffs sustained personal injuries, the adult plaintiff’s motor truck was destroyed, and the adult plaintiff was put to expense for nursing, care and medical attention for the minor plaintiff; that the accident was caused by the negligence of Beraldi, and that both plaintiffs were in the exercise of due care. In each case a verdict was directed for the defendant, and the plaintiff excepted.
The plaintiffs contend that it was error to direct verdicts for the defendant since the jury could have found (a) that Beraldi was the defendant’s agent acting within the scope of his authority, or (b) that the defendant “by direction or permission caused the motor truck of Beraldi to be overloaded and sent out upon the highway under such circumstances as to constitute a nuisance and a trespasser upon the highway,” or (c) that, even if Beraldi was an
The evidence tended to show that the defendant, under contract with the Commonwealth, was engaged in building a State road in Westford, for which he was to be paid “ by the ton,” that “ his ledge and stone crusher . . . [were] on property owned by him in Dracut,” that he orally hired Beraldi with his truck to transport stone from Dracut to Westford at the 'rate of seventy-five cents a ton and that Beraldi was so engaged at the time of the accident. There was no evidence of any express agreement between the defendant and Beraldi as to who was to load the truck or the weight of the loads to be carried. There was testimony that sometimes Beraldi loaded the truck, sometimes he was aided by the defendant’s employees and sometimes these employees did the loading, and that when the truck arrived at Westford the defendant’s foreman gave directions where to dump the stone. There was no evidence as to who had loaded the truck immediately before the accident. There was testimony that it was the practice when the truck was loaded to weigh it on the defendant’s scales at Dracut, a representative of the Commonwealth doing the weighing and keeping a record of the weight, and the defendant’s daughter also keeping such a record for her father and sometimes in the absence of the Commonwealth’s weigher weighing a load for his convenience and at his request. On direct examination the defendant testified that his daughter weighed the loads and kept track of them for him but, on cross-examination, that she “ only weighed loads before the State weigher arrived in the morning, and would tell the loads to the State weigher.” There was evidence that she had weighed the load which was on the truck at the time of the accident and told Beraldi its weight, that the load weighed nineteen thousand pounds and the truck fourteen' thousand fifty, a total of thirty-three thousand fifty pounds, and
The trial judge was right. The evidence did not warrant a finding that, at the time of the accident, Beraldi was the agent — or servant or employee — of the defendant in operating the truck, so that the defendant was responsible for his negligence. Such agency — or employment — was not shown by evidence that Beraldi, by agreement with the defendant, was operating his own truck and transporting stone for the defendant from the ledge and stone crusher in Dracut to the State road in Westford, at a fixed price per ton, without further evidence of actual control or right of control of Beraldi by the defendant. This evidence leaves Beraldi in the position of an independent contractor, who undertook to accomplish a given result by the use of his own property under his own control. Centrello’s Case, 232 Mass. 456, 457. Winslow’s Case, 232 Mass. 458. Eckert’s Case, 233 Mass. 577. Gal
Furthermore, even if it could have been found that the plaintiff’s injuries resulted from overloading Beraldi’s truck it would not follow that the defendant was liable therefor, since the evidence did not warrant a finding that he was responsible for such overloading. It could not have been found that, by the agreement between Beraldi and the defendant, the defendant was bound to provide for loading the truck, or that, on the occasion in question, the .truck actually was loaded partly or wholly by the defendant’s employees or by Beraldi, acting as the agent or servant of the defendant. There was no basis for an inference that the defendant’s daughter had any authority to act for him in connection with loading or dispatching the truck, beyond weighing the loads and recording the weights, so that by weighing the load in question she consented in behalf of the defendant to its excessive weight. It did not appear that he was present when this load was put upon the truck or knew its weight before the accident or that he or any of his agents of servants gave any direction or made any request as to the quantity of stone to be carried on any load. There was no evidence that the truck ever had been overloaded before the day of the accident or that the defendant knew or ought to have known be
There is nothing in the case to indicate that the defendant was negligent in selecting Beraldi to do the work or to show that its nature was such as to require special precautions by the defendant to guard against injurious consequences of its performance by an independent contractor. See Pickett v. Waldorf System, Inc. 241 Mass. 569, 570, and cases cited; McCarthy v. Waldorf System, Inc. 251 Mass. 437, 439; Mintz v. White, 269 Mass. 218, 221. Wetherbee v. Partridge, 175 Mass. 185, relied on by the plaintiff is distinguishable. See also McGinley v. Edison Electric Illuminating Co. of Boston, 248 Mass. 583, 586, and cases cited.
Exceptions overruled.