268 Mass. 55 | Mass. | 1929
The plaintiff, an infant of two and one half years, by his father and next friend brings this action at law against Alma Bowen of Watertown, for damages resulting from a collision with an automobile alleged to have occurred on or about May 13, 1926. At the trial there was evidence tending to show that the plaintiff and his custodian, his mother, were in the exercise of due care, and that the driver of the automobile was negligent; but the judge directed a verdict for the defendant because there was no sufficient evidence to show that the defendant was the driver of the automobile or was responsible for the acts of the driver. The only question arising on the report is the propriety of the order for the verdict.
Her similarity of name is not sufficient evidence to warrant a finding of identity, Ayers v. Ratshesky, 213 Mass. 589, 593, 594; although taken with other evidence of likeness it may suffice to take the issue of identity to a jury. Dolan v. Mutual Reserve Fund Life Association, 173 Mass. 197, 202, and cases cited. The evidence reported contains no description of the defendant Alma Bowen other than as a resident of Watertown. It is ample to justify findings that Alma G. Bowen was the driver of the machine which injured the plaintiff, and, within a month or two of the event, had admitted that she had been in an accident where she had struck a little boy. It would support further findings that when she made that statement she had in her hand a letter from the plaintiff’s attorney addressed to Alma Bowen at Watertown referring to an accident to a little boy on May 13, 1926, claiming damages therefor, and charging her (the speaker) with being in the accident. Plainly, as against Alma G. Bowen this would justify a finding that Alma G. Bowen was the Alma Bowen who was addressed in the letter. It does not follow, however, that the evidence will justify a finding against Alma Bowen, the defendant here, that she is the Alma G. Bowen who drove the car and admitted striking a little boy. Alma G. Bowen’s admission of identity with the person addressed in the letter is not a statement that she is the Alma Bowen here defending. Alma Bowen of Water-
The defendant was under no obligation to be present in court or to introduce evidence until the plaintiff had shown enough to require it. No inference can be drawn against her from her absence. Bishop v. Pastorelli, 240 Mass. 104.
The burden of proving the identity of the defendant with the driver of the car or the existence of such a relation between defendant and driver that the defendant was liable for the driver’s acts was on the plaintiff. In our opinion the trial judge was right in holding that the evidence on those issues was not sufficient to require submission to the jury. In accord with the report the entry must be
Judgment for the defendant.