318 Mass. 13 | Mass. | 1945
This is an action for personal injury. The plaintiff was employed by the defendant as a shipper in the defendant's tannery on Pierpont Street in Peabody. When he came to work at about 6:30 on the morning of January 19, 1943, he parked his automobile on the side of Pierpont Street opposite the tannery. “It was raining and freezing and the roads were glare ice and very slippery." He worked in the tannery until about 9:15, when, according to his testimony, having in mind that “conditions were bad" and desiring that his automobile be “off the street so it would not be hit," he came back to the street to move it, but before he had entered it he was struck by a truck belonging to the defendant, driven by an employee of the defendant in the course of his employment, and carrying a load to the defendant's plant.
The jury returned a verdict for the plaintiff, and after leave reserved the judge allowed it to stand. The question is whether there was evidence to warrant the verdict.
Bearing on negligence of the defendant's truck driver, there was evidence tending to show these facts: The plaintiff’s automobile was parked on its right hand side of Pierpont Street with its rear end near the curb line, of Fountain Street, an intersecting street, and facing toward Aborn Street. Pierpont Street from Aborn Street to Fountain Street ran down grade at the rate of about seven and one half per cent. The distance from Aborn Street to the rear of the plaintiff's automobile was about one hundred twenty-eight feet. Pierpont Street was from twenty-eight and one half to thirty-two and one half feet wide. There were snow banks and parked automobiles on each side, so that there was room for only one vehicle at a time to pass through. The truck came down the hill on Pierpont Street from Aborn Street. While the plaintiff was standing in Pierpont Street
The defendant relies upon the familiar rule that skidding of itself is not evidence of negligence. Williams v. Holbrook, 216 Mass. 239. Kelleher v. Newburyport, 227 Mass. 462, 464. Mazmanian v. Kuken, 285 Mass. 516, 518. Goyette v. Amor, 294 Mass. 355. Sherwood v. Radovsky, 317 Mass. 307. But it is equally well settled that skidding may be caused or accompanied by negligence upon which liability may be predicated. Loftus v. Pelletier, 223 Mass. 63. Lambert v. Eastern Massachusetts Street Railway, 240 Mass. 495, 499. Arnold v. Brereton, 261 Mass. 238, 241-242. Hiller v. Desautels, 269 Mass. 437. Hennessey v. Moynihan, 272 Mass. 165. In the present case there was evidence that under especially slippery conditions, of which he was
The evidence did not require a finding that the plaintiff was chargeable with contributory negligence. The plaintiff further testified that when he went out he looked both ways and saw no vehicle coming; that he "kept looking up the street until he got over to his” automobile; that his body was facing his automobile and he was "looking toward the rear” away from the direction from which the truck approached while he was talking with the mail man asking him to move the mail truck; and that when he heard the yell and first saw the defendant’s truck he "tried to get out of the way by leaning up against the side of his car and making himself as small as possible.” The defendant’s driver testified that the two men had their backs to his truck until it was four feet from them, and that one of them jumped out of the way, but that the plaintiff "could not.” The jury could find that the plaintiff was alert to his own safety but that the defendant’s truck came around the corner at Aborn Street and started down Pierpont Street while the plaintiff’s attention was temporarily diverted to
The defendant further asserts that it was insured under the workmen’s compensation law, and that its employee, the plaintiff, who had given no notice that he claimed his rights of action at law, had waived those rights and so could not maintain this action. G. L. (Ter. Ed.) c. 152, § 24. The defendant, however, has not pleaded the compensation act as a defence. See White v. E. T. Slattery Co. 236 Mass. 28, 32. But passing this point, and assuming that the defendant was insured under the act, it is clear that the waiver by an employee of his common law rights by virtue of § 24 does not extend to his right to recover at common law for a noncompensable injury. His right to recover for such an injury is not affected by the compensation law. Clark v. M. W. Leahy Co. Inc. 300 Mass. 565, 569-570. The plaintiff’s injury, sustained while he was attending to his own automobile for his own benefit on the street and off the premises of his employer, was not a compensable injury. His work for his employer did not require him to be in the street, and it does not appear that he used his automobile in his employer’s business. His injury did not arise out of and in the course of his employment. § 26. Bell’s Case, 238 Mass. 46. Latter’s Case, 238 Mass. 326, 328. Gardner’s Case, 247 Mass. 308, 310. Chernick’s Case, 286 Mass. 168, 172. Mannering’s Case, 290 Mass. 517, 519. See White v. Checker Taxi Co. 284 Mass. 73, 75. Compare Milliman’s Case, 295 Mass. 451, 453; Cahill’s Case, 295 Mass. 538.
The defendant is not helped by the provision of § 26 relating to street risks, since the plaintiff was not "actually engaged ... in the business affairs or undertakings of his employer.” Nor is the defendant helped by the further provision of that section that "any person who, while
The defendant finally contends that it is not liable because the plaintiff and the defendant's truck driver were fellow servants. But the fellow servant rule applies only where the servant was injured “while acting within the scope of his employment or in connection therewith” (Am. Law Inst. Restatement: Agency, § 474) and “does not extend to public ways necessarily used by the servant as an approach.” Am. Law Inst. Restatement: Agency, § 486, comment e. Gillshannon v. Stony Brook Railroad, 10 Cush. 228, 231. Dickinson v. West End Street Railway, 177 Mass. 365. Kilduff v. Boston Elevated Railway, 195 Mass. 307. O’Brien v. Boston & Albany Railroad, 138 Mass. 387, 389. Olsen v. Andrews, 168 Mass. 261, 263-264. See White v. Checker Taxi Co. 284 Mass. 73.
Exceptions overruled.