224 Mass. 207 | Mass. | 1916
The plaintiff’s due care is conceded, and if, without deciding, it is assumed the jury further could find that the car had been dispatched by a duly authorized agent of the company, that the unlicensed driver while operating the automobile was its servant, and that the plaintiff’s injuries were caused by his negligence, the plaintiff cannot recover unless the defendant had undertaken the duty of providing her with transportation;
The company, although engaged in the sale of automobiles, did not let them for hire and there seems to have been no substantial dispute, or the jury upon the aspect of the evidence most favorable to the plaintiff could have found, that one Martin, the “advertising manager” of a company publishing a paper in which the defendant advertised, had been requested by an employee, Edna A. Gilmore, to "obtain an automobile and driver for her to take her mother out to Medford for a certain purpose,” and that in response to this request Martin telephoned to the office of the defendant company and requested that a touring car for her use be sent to the street and number of Miss Gilmore’s house. The defendant, for the sole purpose of accommodating Martin, thereupon sent the car to the house and, after Miss Gilmore and her mother got in, they drove by Miss Gilmore’s direction to the plaintiff’s residence, where upon her invitation then or previously given the plaintiff, a fellow employee at the publishing company’s office, joined them, when they proceeded to Medford. It was on the return trip that the collision occurred.
The burden of proof rested on the plaintiff to show that under the circumstances through which she had become an occupant of the car the defendant undertook to exercise reasonable care to protect her from injury dining the journey. If the car and driver were lent to Martin for his own use or the use of his friends, the plaintiff cannot recover. The defendant had no interest in the purposes or undertaking for which Martin had requested and obtained the loan of the car. It only permitted him to use the car for his own accommodation. Herlihy v. Smith, 116 Mass. 265, 266. The evidence fails to show any contract for hire or in payment of any services of Martin in the past, or to be rendered in the future.
But even if his request was complied with in order to retain his good will, or in recognition of past favors from him personally, or in the hope of future favors from the publishing company, or in expectation that if his friends desired to purchase a car he would recommend the defendant’s automobiles, the service which the defendant undertook was to transport the persons named within the limits already described. It is settled that the extent to
The request for instructions to the jury that “Upon all the evidence, the jury must find for this defendant” and “That there is no evidence for your consideration of negligence on the part of the defendant R. & L. Company” should have been given. The remaining exceptions in so far as not covered by what has been said need not be considered.
Exceptions sustained.
