Stemler v. Cady

246 Mass. 384 | Mass. | 1923

DeCourcy, J.

The plaintiff, a girl eleven years of age, was injured when an auto truck in which she was riding came into collision with the defendant’s automobile, in which he was riding with his chauffeur. The auto truck was owned by the plaintiff’s father, and was operated by her cousin Arthur F. Langer. On the day of the accident Langer started for Leominster with a load of potatoes and the plaintiff and her mother rode with him. At Fitchburg her mother alighted; and at Langer’s request, and with her mother’s consent, the plaintiff was on the way to Leominster when the accident happened. Admittedly there was evidence for the jury of negligence on the part of Langer and of the defendant’s chauffeur. There was a verdict for the plaintiff. The exceptions (assuming that they were properly saved) are to the refusal of the trial judge to give certain requested rulings.

These rulings were based upon the assumption that the negligence of Langer as matter of law precluded the plaintiff from recovering, either because he was the agent of her father or mother, or because she had surrendered all care for her safety to him, and his negligence thereby became imputable to her. While the third request assumed as an established fact that Langer was such agent, the jury could find otherwise. Even if such agency were shown, Langer was not the agent or servant of this plaintiff. The jury could find on the evidence that she was his guest, and exercised no control over his actions in operating the auto truck. Peabody v. Haverhill, Georgetown & Danvers Street Railway, 200 Mass. 277.

The only other question raised is whether Banger’s negligence was imputable to the plaintiff on the ground of “ voluntary, unconstrained, non-contractual surrender of all care ” on her part to his caution. Shultz v. Old Colony Street Railway, 193 Mass. 309, 323. As matter of fact, and notwithstanding her assent to the cross-examiner’s leading questions, it could be found on the evidence that she was looking ahead, saw the defendant’s automobile approaching on the wrong side of the road, and that the collision occurred so suddenly that she had no time or opportunity to escape. So far as the operation of the machine was concerned, she necessarily relied largely on the experienced driver of the car. Griffin v. Hustis, 234 Mass. 95, and cases cited. And she had no reason to anticipate the sudden change of direction taken by one or both automobiles which resulted in the collision. The judge fully and clearly instructed the jury on the law of imputed negligence so far as applicable, embodying in his charge pertinent portions of the opinion in the Shultz case. There was no error in the refusal to give the rulings requested.

Exceptions overruled.