282 Mass. 262 | Mass. | 1933
These are actions of tort which arise out of a collision between an automobile owned by the plaintiff Dubois, and driven by the plaintiff Gravelle, and a switching engine operated by servants of the defendant at about 1:30 p.m. February 21, 1929, on a private railroad spur track owned by the Saco-Lowell Shops where the said spur track crosses a private driveway on the Saco-Lowell Shops’ property in Newton, Massachusetts. By two separate actions, tried together, the plaintiff Dubois seeks to recover for damage to his automobile, and the plaintiff Gravelle seeks to recover damages for personal injuries sustained by him as the result of the collision. The declaration of each plaintiff contained three counts; the first alleged ordinary negligence, the second "gross negligence,” and the third "wilful and wanton conduct.” The trial judge ruled, without exception saved by plaintiff or defendant, that there was no evidence “that the crew of this engine was guilty of wanton and wilful conduct,” and submitted the cases to the jury on the count for ordinary negligence. The jury returned a verdict in favor of each plaintiff, which was accepted by the judge with leave reserved under G. L. (Ter. Ed.) c. 231, § 120, to enter a verdict for the defendant. At the close of all the evidence in each case the defendant filed a written motion for a directed verdict for the defendant and duly excepted to the refusal of the trial judge so to direct the jury. The defendant in each case duly filed a motion for a verdict for the defendant to be entered under the leave reserved. The motion was heard and denied and the defendant duly excepted. The issues of law before this court relate to the denial of the defendant’s motions for directed verdicts, to the denial of the defendant’s motions for the entry of verdicts under the leave reserved, and to the refusal of the judge to give certain instructions requested by the defendant.
The material facts are as follows: The “accident happened within the private property of the Saco-Lowell Com-
The plaintiff Gravelle, on the day of the accident, had worked for the Saco-Lowell Shops for seven or eight years as a pattern clerk, and was somewhat, but not altogether, under the orders of the plaintiff Dubois, who was foreman of the department in which Gravelle worked. He was asked by the plaintiff Dubois to put chains on Dubois’s sedan automobile which was parked on Needham Street. To execute this request Gravelle, after his lunch hour, which was between twelve o’clock noon and one o’clock,
Dubois testified that “he was foreman at the Saco-Lowell Shops; that he was the owner of the car in the accident; that he was foreman of the department in which Gravelle worked; that Gravelle was required to do what Dubois told him with respect to Saco-Lowell business; that he had some conversation with Gravelle about putting chains on his (Dubois’s) car; that he did not know where Gravelle went after that; that he did not see the car again until 3:30 p.m.; that Gravelle was somewhat, but not altogether, under his orders.”
Gravelle testified “that Dubois did not ask him to take the car back after he put the chains on; that he was driving the car back to where he found it after putting the chains on [at the time of the accident]; that Dubois did not know that he was driving his car in to put chains on or that he drove it back after he put the chains on.”
On the above evidence the jury could have found that the accident and the consequent injury to the automobile and to Gravelle were due in part to the weather conditions which obscured the view of the crossing by the engineer, and in part to the failure of the defendant in the circumstances to maintain an observer who should warn the engineer of obstructions at the crossing in season to stop the train before colliding with the obstruction. Upon the evidence the duty of the defendant not to collide with the automobile of the plaintiff Dubois was not different from
The duty of the defendant to Gravelle is measured by the standard applied to the action of Dubois. At the time of the accident and for a half hour before Gravelle was occupied on a small job which he had undertaken at the request of the foreman in the department where he worked. The job was personal to him and to the foreman and was in no way connected with the Saco-Lowell business. • In driving the automobile of Dubois over the driveway on the premises of the Saco-Lowell Shops, including the crossing, Gravelle was on no business that enured to the benefit of that company. There is no evidence that his employer, or his foreman in the department of the SacoLowell Shops, knew that he was using the driveway, and there is no evidence that Gravelle owned an automobile or was given permission with employee owners of automobiles to use the driveway over the crossing as a means of access to places provided by the company for parking. His rights to drive an automobile over the driveway and crossing were those of a mere licensee and in no degree those of an invitee. In the use of the tracks and crossing of the Saco-Lowell Shops the duty of the defendant to the plaintiff was no greater than the duty of the Saco-Lowell Shops. That duty was to refrain from wilful, wanton and reckless misconduct. Neither the owner nor the contractor is hable for mere negligence to a licensee in the performance of work on the premises, and unless there is evidence of wilful or wanton misconduct the injured licensee cannot recover. Here there was no evidence, as the trial judge ruled, of such conduct.
In each action the motion for a directed verdict should
It follows that in each action the exceptions must be sustained, and judgment be entered for the defendant.
So ordered.