243 Mass. 292 | Mass. | 1922
Ernest Roy, a boy of fifteen, while riding in an automobile of the defendant, received an injury resulting in his death without conscious suffering. This action was brought by his administratrix. The automobile, operated by one of the defendant’s sons, aged seventeen and named Oscar, was being used in his business. The deceased was not in the employ of the defendant. There was a verdict for the plaintiff, and the only exception on which the defendant relies is to the part of the instructions to the jury which relates to the presence of the deceased boy in the automobile.
The evidence as to this was conflicting. The plaintiff, who was the boy’s mother, testified that she had seen him riding in the automobile with the defendant on a Saturday before the accident, and that after it had occurred the defendant came to her house and among other things said: “when . . . [her] boy was going with his boy, he thought his boy was safe because he (Ernest) was a careful boy and he was a quiet boy; that he thought his boys were safe when . . . [her] boy went with his boys.” According to another witness what the defendant stated was: “he always wanted Mrs. Roy’s boy to go with his son Oscar because he could depend more on Mrs: Roy’s boy than on his own. He always wanted his boy to have Mrs. Roy’s boy with him.” A third person testified that the defendant on the same occasion said: “I am very sorry to witness what has happened to your boy. I would rather have two of my own instead because I depended on your son to be on my machine. When he was on my machine my own were in safety.” This was contradicted by the defendant and by witnesses called in his behalf. The defendant denied that he knew the deceased was going in the automobile and said that he had directed his son not to take any boys with him. In substance this was all the evidence as to the circumstances in which the deceased boy was riding in the automobile.
The judge, subject to the defendant’s exception, instructed the jury as follows: “Now, how are you going to ascertain the fact, or what is the fact, whether Ernest was there with the permission of the defendant or was there without that permis
All other exceptions are waived. It is not contended that the evidence did not warrant a finding that the deceased was riding with the “permission” of the defendant. No question is made as to the presence of evidence sufficient to warrant submission of the case to the jury. This is not considered. But it is urged that there was error because, it is said, under this instruction the jury were permitted to find for the plaintiff on the ground that a presence "merely permissive would warrant a verdict. In this connection the defendant does not contend that the issue whether the deceased was riding by mere license rather than by invitation could not properly have been made the subject of an instruction; his objection is on the ground that the judge wrongfully confused “permission” with “invitation” and permitted a verdict in case only the former was found.
As to the latter the judge said: “Was Ernest Roy there on what I have referred to, the invitation — Of course, there is no evidence in the case that John Parker said, ‘Ernest, I want you to ride in this automobile this morning,’ but you can infer, of course, from all the evidence, if you believe the plaintiff’s story, that there was what amounted to an invitation, — or, was there no invitation? Now, as you find that fact, then you apply negligence or gross negligence.” To this no exception was taken and it is not. argued that the instruction was erroneous. The entire charge is not given, neither does the record disclose whether the quoted passages are all that it contained on the subjects referred to therein. The only part of the charge given which
Exceptions overruled.