313 Mass. 318 | Mass. | 1943
One MacDonald asked the intestate, Angelo J. Mendolia, if he could take his automobile the next day for the purpose of visiting MacDonald’s aunt, who lived in Baynham. Mendolia said that as he had nothing to do he would go along on the trip. Mendolia, according to the arrangements made the previous day, met MacDonald and with him drove to a hospital where a woman nurse, who was a friend of Mendolia, got into the automobile. They then proceeded to Attleboro where a woman friend of MacDonald joined the party. After a visit to MacDonald’s aunt in Baynham they returned to Attleboro for the purpose of leaving MacDonald’s friend at her home, and from there started, at about midnight, on the return trip to Boston. MacDonald asked Mendolia if he could drive. Mendolia stopped the automobile and then sat on the front seat at the right of the nurse. MacDonald left the rear seat and took his position back of the steering wheel. He was operating the automobile when it became involved in a collision in Boston with another automobile operated by the defendant. Mendolia was so severely injured that his death resulted. The defendant excepted to the refusal of the judge to permit him to ask MacDonald if he would have driven the automobile to his home, or to Mendolia’s home, or to the hospital if Mendolia had requested him to do so; to the denial of two requests for instructions, one to the effect that Mendolia as the owner had the right of control of the automobile and there was no evidence that he had surrendered such right to MacDonald at the time of the accident, and the other, in substance, that if MacDonald was negligent and such negligence contributed to the accident, then the plaintiff could not recover; and to parts of the charge that were inconsistent with these two requests. The jury returned a verdict for the plaintiff.
The negligence of the operator of an automobile in which the owner is travelling is chargeable to the latter, in an action against a third person by the owner to recover damages, if at the time of the injury the owner had the
The burden of proving that Mendolia himself was contributorily negligent rested upon the defendant by virtue of G. L. (Ter. Ed.) c. 231, § 85. Control is an incident of ownership, and continues in the owner-occupant of an automobile that is being driven along the public way in the absence of any evidence tending to show that it has been transferred by the owner to the operator. Where it merely appears that a third party is operating the automobile in the presence and with the knowledge and consent of the owner and the owner is injured by a collision of his automobile with the automobile of the defendant, then the burden is upon the owner to show that he did not stand in such a relation to the operator that the negligence of the latter should be imputed to him, or that, if he stood in such a relation, the operator of his automobile was free from contributory negligence. The due care statute creating a presumption in favor of the plaintiff and putting the burden upon the defendant of proving the negligence of the plaintiff extends only to the personal conduct of the plaintiff himself, and leaves unaffected the principles of the common law that a plaintiff who is chargeable with the conduct of a third person must prove that the latter was not negligent. Bullard v. Boston Elevated Railway, 226 Mass. 262. Sullivan v. Chadwick, 236 Mass. 130. Pitman & Brown Co. v. Eastern Massachusetts Street Railway, 255 Mass. 292. Stachowicz v. Matera, 257 Mass. 283. Franca v. Rubin, 268 Mass. 590. Shear v. Rogoff, 288 Mass. 357. McKenna v. Andreassi, 292 Mass. 213. Morton v. Dobson, 307 Mass. 394.
We think that there was error in the denial of the defend
In view of our conclusion it is unnecessary to consider the other exceptions.
Exceptions sustained.