Robinson v. Doe, 224 Mass. 319

224 Mass. 319 | Mass. | 1916

Carroll, J.

On the evening of June 4,' 1910, the plaintiff while on Providence Street, Boston, was struck by a brick or stone. In a tent on an adjacent lot a circus performance was going on. Workmen were at this time pulling up the stakes, and a man, who appeared to be in charge, was directing them and also .attempting to drive away a crowd of boys who had gathered about the circus tent. This man had a stick which he used several times to frighten or to force the boys to leave the premises. On one •occasion when they did not move he ran toward them, picked up something and threw it at them. The plaintiff, who was fifty or sixty feet away, was hit by either a brick or stone thrown by this man.

1. There was evidence that the plaintiff was injured by the .act of the defendants’ servant. The words “Barnum and Bailey’s Circus” were on the wagons and the posters, the performance was going on at the time: in addition, a license was granted to "Barnum and Bailey’s Greatest Show on Earth” to exhibit on these same grounds from May 30 to June 4. It could be found that the tents and other property were owned by the defendants. Stewart v. Hugh Nawn Contracting Co. 223 Mass. 525. Smith v. Paul Boyton Co. 176 Mass. 217. Ingraham v. Chapman, 177 Mass. 123. Murphy v. Fred T. Ley & Co. Inc. 210 Mass. 371. It appeared that the man who threw the missile came from inside the tent. He wore a khaki shirt and overalls, and "a slouch hat peaked in the center;” the sleeves of his shirt were rolled up. The men with him, fifteen or twenty in number, were dressed the same way. He was trying to keep the boys from entering the tent, from disturbing the exhibition and from interfering with the men in their work. Where a person appears to be in charge or control of a portion of a circus tent and the contiguous grounds, and on the night when the license expires is openly engaged with others in taking down the tent, a jury could reasonably infer from his acts, his dress, the nature of the work he is doing, the number of men assisting him and all the special circumstances of the case, that the person was in the employ of the defendants and with their assent and authority was in control of their property.

Being in charge of the work, in view of the peculiar character of his employment, it also might be .found that in driving the boys away he was acting within its scope and purpose, although perhaps the particular means he made use of were not intended nor contemplated by his employers. Kimball v. Cushman, 103 Mass. 194. Perlstein v. American Express Co. 177 Mass. 530. McKeon v. New York, New Haven, & Hartford Railroad, 183 Mass. 271. Grant v. Singer Manuf. Co. 190 Mass. 489. Murphy v. Bay State Wine & Spirit Co. 212 Mass. 285. Coughlin v. Rosen, 220 Mass. 220.

The defendants rely on Trombley v. Stevens-Duryea Co. 206 Mass. 516, where it was held, that from the mere possession of an automobile no presumption arises that the person operating it is the servant or agent of the owner. In the case at bar, it could be found that the servant was in charge of the defendants’ property at their place of business; that he was engaged in protecting it, in doing their work, promoting their interests; and not engaged in a private venture of his own. In Fletcher v. Willis, 180 Mass. 243, where the servant of the proprietor of a race track pushed the plaintiff from the top of a fence, there was nothing to show, nor was there anything from which an inference could be drawn to indicate the purpose for which the servant was employed.

The defendants asked the judge to rule that, if the person who threw the brick was "on a frolic of his own,” the defendants were not liable. The record shows that this request was given in substance.

The defendants further requested, that if the act of the person in throwing the missile was to punish the person at whom it was thrown, or “to wreak his own vengeance upon the person,” the defendants were not liable. The jury were told there could be no recovery if the employee was “ on a frolic of his own,” that he must be acting within the scope of his authority, and further, “if the man who threw the brick was doing that for a pastime of his own, the defendants are not liable.” In view of all that was said, it is evident the jury were sufficiently instructed on this aspect of the case.

The defendants also requested rulings that, if the person or persons at whom the missiles were thrown were not at the time interfering with the defendants’ property, but were running away, the defendants are not liable. There was evidence showing that the boys had been driven away more than once; that they came back and would not leave the premises when requested. It might be found that they then were interfering with the men or attempting to enter the circus tent; that the servant, in the performance of his duty, was attempting to prevent these acts. In view of the language of the judge, we do not think that the defendants were in any way harmed by the failure to give these specific requests.

Subject to the defendants’ exception, the judge said to the jury, “The defendants have produced no evidence as to who the party was that threw the missile, if any one threw it. And whether or not that evidence is in the defendants’ possession you may take into account as an inference bearing upon the relations between the parties. You may infer from the fact of no witness having been called by the defendants touching the relations between the defendants and the man in their employ who is said to have thrown’ the brick, you may infer if he was called that his testimony would not help the defendants.” While the judge well might have omitted this instruction yet it cannot be held to have been erroneous. D’Addio v. Hinckley Rendering Co. 213 Mass. 465, 469. We do not interpret this ruling as referring to a failure on the part of the defendants to call the man who threw the brick, a reference which hardly would have been justified. McKim v. Foley, 170 Mass. 426, 428. Buckley v. Boston Elevated Railway, 215 Mass. 50, 55, 56.

The statement of the servant when driving the boys away, “Get to . . . out of here,” and other similar remarks accompanying and explaining his acts, were admissible. See Conklin v. Consolidated Railway, 196 Mass. 302.

We have considered all the exceptions argued by the defendants in their brief, and we see no error.

Exceptions overruled.