219 Mass. 263 | Mass. | 1914
This is an action to recover for personal injuries received by the plaintiff through coming in collision with a horse and wagon when she was crossing a street in Fall River.
The plaintiff testified that the defendant came to her house the day after the accident and told her that the team which injured her belonged to him and that the driver at the time was “his boy.” She further testified: “He asked me if I heard the boy call out,” and “He said the boy called out to me.” There was evidence that the boy was twelve or thirteen years of age; that this team was seen on Harrison Street between half past six and seven o’clock on the evening of the accident, and then was being loaded with old mortar which was taken from a house on that street; that at the time of the accident, which occurred
At the close of the plaintiff’s case the defendant rested without offering any evidence. If the jury believed the plaintiff’s testimony a finding that the defendant owned the team was well warranted, aside from the evidence as to the name which was on the wagon. There was no direct evidence to show that the driver of the team was in the defendant’s employ except that the defendant referred to him as “my boy.” We think the jury properly might have inferred from this evidence that the driver was the servant of the defendant, as similarly might have been inferred had the driver been a man of mature years and the defendant had spoken of him as “my man.”
Upon the evidence whether the driver was acting within the scope of his employment, these facts might have been found: That this team was owned by the defendant and was driven by his servant; that shortly before the accident it was loaded with refuse at a house on Harrison Street and was being driven to the public dump on Covel Street when the accident occurred; and that the next day after the accident the defendant called upon the plaintiff and, knowing that she had been struck by his team, told her that the driver called out to her, and asked her if she did not hear him. It will be observed that he did not refer to the employment of the boy or to the work in which he was engaged at the time of the accident. Apparently his interview with the plaintiff was for the purpose of making the assertion that the boy had warned her of the approach of the team, and inferentially that the accident was due not to any fault on the part of the driver, but to her own carelessness.
In view of this conversation, of the work which was being done with the team just before the accident, of the presence of the name upon the wagon, and the reasonable inferences to be drawn therefrom, the jury were warranted in finding that at the time the plaintiff was injured the team was owned by the defendant,
Exceptions overruled.
It appeared in evidence that the accident happened on Covel Street at the comer of County Street; that Harrison Street runs north and south but does not extend as far north as County Street by one block; that Covel Street runs north and south beginning at its south end at County Street; that Covel and Harrison Streets are in nearly a direct line north and south; that to go from Harrison Street to Covel Street one must turn east or west at the north end of Harrison Street and go half a block; then take a street running north and south and go north one block to County Street; then go east or west half a block to Covel Street.
The case was tried before McLaughlin, J. There was a verdict for the plaintiff in the sum of $1,000; and the defendant alleged exceptions.
