312 Mass. 603 | Mass. | 1942
The defendant’s automobile had become stalled in a public way in Somerville. While Kavigian was
There was evidence that Kavigian was sitting with Atkins on the steps of a house near where the defendant was doing something about the motor of his automobile in an unsuccessful endeavor to start the mechanism, and that the defendant, who knew that Kavigian worked in a garage, requested him to put the motor in operation for him. He informed Kavigian that he had run out of gasoline but had secured five gallons, which were in the tank. Kavigian took off the distributor, told the defendant to turn on the ignition, checked the points, and found there was nothing wrong. He then removed the air cleaner from the top of the carburetor, poured in eight or nine drops of gasoline, which the defendant had given him, replaced the cleaner and told the defendant to get into the automobile and start the motor. The defendant did so but the motor stopped after running for thirty seconds. Kavigian got some more gasoline from the defendant. He again removed the air cleaner and told the defendant not to start the automobile until he had replaced the cleaner. The defendant got into the automobile. While Kavigian was pouring the gasoline, the defendant put his foot on the starter, the fan belt started to revolve, Kavigian heard the backfire in the motor, and a flame burst out from the carburetor, setting fire to his
The defendant contends that the evidence shows that the ignition was on in accordance with the directions of Kavigian from the time he first attempted to prime the carburetor, that the explosion could not have happened unless it had been on, that the explosion was attributable to this fact, and that therefore Kavigian was careless. The difficulty with this contention is that the jury could find that the ignition was on from the time Kavigian tested the distributor, or that it was on from the time he first attempted to prime the carburetor, or that it was put on while he was making his second attempt to prime it. Even if the ignition had not been turned off after it had been turned on when the distributor was examined, the jury could find that the ignition alone was not the cause of the accident. They could find that it was not defective when the motor was started and operated for thirty seconds or when the accident occurred. They also had the testimony of the defendant
The jury could find that the defendant disobeyed the instructions of Kavigian not to start the motor until he had replaced the air cleaner. The defendant had accepted the services of Kavigian who, if not at the express invitation, then at least at the implied invitation of the defendant, was attempting to perform services beneficial to him. Neither Kavigian nor Atkins was a volunteer intruding himself into a matter in which he had no interest and without the knowledge or consent of the defendant. The services of neither were secured by an agent of the defendant who had no authority to hire him. Lessard v. Kneeland, 257 Mass. 455. Murphy v. Barry, 264 Mass. 557. Coulombe v. Horne Coal Co. 275 Mass. 226. Kowalczyk v. Murphy, 295 Mass. 551. In the cases at bar, the defendant dealt directly with Kavigian, and owed him the duty of taking reasonable care for his safety while Kavigian was undertaking the starting of the defendant’s automobile. Whether the defendant failed to exercise this standard of care was for the jury to determine. Norris v. Allen, 217 Mass. 573. Lyttle v. Monto,
The issues of contributory negligence and assumption of risk by Kavigian were properly submitted to the jury. He worked in a garage for a number of years and was familiar with the dangers involved in priming carburetors by introducing gasoline through the aperture made by removing the air cleaner. But he did not intend to have the motor started until he had replaced the cleaner, thus preventing the intake backfire from precipitating burning gasoline from the carburetor. He could to a reasonable extent rely upon the assumption that the defendant would act in accordance with instructions. It could not be ruled as matter of law, with the burden of proof on the defendant, that either contributory negligence or assumption of risk had been established. Leary v. William G. Webber Co. 210 Mass. 68. Hietala v. Boston & Albany Railroad, 295 Mass. 186. Engel v. Boston Ice Co. 295 Mass. 428. Alderman v. Noble, 296 Mass. 30. O’Brien v. Bernoi, 297 Mass. 271. Holland v. Pitocchelli, 299 Mass. 554. Barttro v. Watertown Square Theatre, Inc. 309 Mass. 223. Burke v. Zatoonian, 309 Mass. 541.
The jury could find that Atkins was a bystander, observing the performance of the work by Kavigian. The defendant’s liability to him presented an issue of fact which was properly left to the determination of the jury. Mahar v. Steuer, 170 Mass. 454. Runnells v. Cassidy, 307 Mass. 128.
The defendant excepted to that portion of the charge in which the jury was instructed that if Kavigian did the work without being asked by the defendant he would have the right to expect that the defendant would not act negligently.
The second exception of the defendant is to the action of the judge in permitting an expert, who testified that he was familiar with the usual type of carburetor with which an automobile of the make, type of engine, and year of manufacture as that of the defendant’s automobile was equipped, to give his opinion as to the cause of the explosion. There was no evidence of the particular type of carburetor on the defendant’s automobile, but the evidence showed its manufacture, the kind of engine, the year of its manufacture and the type of body. There was no question but that this automobile was of a standard make in common use. The expert could rightly assume that this automobile was equipped with the general type of carburetor usually furnished upon such automobiles. There was no error in permitting him to express an opinion. Lucier v. Norcross, 310 Mass. 213.
The exceptions of the plaintiffs to ordering verdicts entered for the defendant are sustained; the exceptions of the defendant are overruled and judgments are to be entered in accordance with the verdicts returned by the jury.
So ordered.