Kirsch v. J. G. Riga & Sons, Inc.

264 Mass. 233 | Mass. | 1928

Pierce, J.

These are two actions of tort wherein the plaintiffs, husband and wife, seek to recover damages for injuries sustained by them respectively by reason of the careless and negligent care or control of an automobile by the defendant, its agents or servants. 'At the close of the evidence, the defendant filed in each case a written motion for a directed verdict for the defendant. The motions were denied, the defendant excepted thereto, and the jury returned a verdict for the plaintiff in each case.

In their aspect most favorable to the contention of the plaintiffs the facts disclosed by the record are as follows: The defendant’s servant, acting within the scope of his authority, on the afternoon when the plaintiffs were injured drove the automobile in question from the store of the defendant to Harrison Avenue, in Springfield, Massachusetts; thence he drove the car half way down the hill to a point on the left side near the entrance to a garage and stopped with the left front wheel turned towards and against the curb. He set tñé~ emergency brake, left the ca,r and went into the garage, Where he remained~Ten~or fifteen minutes. Sometime after the car was left and while the servant of the defendant was in the garage, the car moved from where it was placed, ran down the hill to Dwight Street and struck the plaintiffs. A part of Harrison Avenue runs from Chestnut Street to Dwight Street, a distance of two hundred and fifty feet, and has in the direction of Dwight Street a descending grade on an average of about ten and one half per cent.

Concerning the starting of the car there was evidence which would have warranted the jury in finding that, as left, it was not put near enough to a right angle to the curb, if they found, as the evidence warranted, thatlhe weight of the car on a hill like Harrison Avenue “will turn the wheels” and that the emergency brake on a car of the kind this car was “is pretty unreliable.” There is no evidence that any cause other than the failure of the servant to secure the car in the place in which it was left contributed in any degree to th initial motion of the car when it leftTEe curb; and particu larly there is no evidence that some unknown person released the brakes or turned the steering; wheel while the sirvánt of the defendant was~within the garágel We think "the motions were denied rightly, and that the exceptions saved thereto must be overruled.

So ordered.