| Mass. | Jan 29, 1925
These are two actions of tort arising as the result of personal injuries received by the plaintiff Alice-Walsh, a minor, when an automobile truck of the defendants came in contact with her on Broadway, South Boston, on January 19, 1920. The cases were tried together in the Superior Court and resulted in verdicts for both plaintiffs. At the close of the evidence, the defendants moved for directed verdicts, and the case is before this court on the refusal of the presiding judge so to order.
The defendants contend that the verdicts should have been directed because (1) “ Stafford, the defendants’ chauffeur, was not acting within the scope of his employment at the time of the accident and (2) “ Plaintiff, Alice Walsh, was not in the exercise of due care.” The defendants do not formally or inferentially contend that the chauffeur was not negligent.
The evidence in its aspect most favorable to the plaintiffs, upon the issue of the due care of Alice Walsh, warranted a finding of the facts which follow. Shortly before one o’clock on the afternoon of the day of her injury, Alice Walsh, about fifteen years of age, accompanied by her mother, was waiting in front of a drug store at the corner of C Street and West Broadway, South Boston, for a trolley car bound for Boston. The car finally arrived and stopped about ten feet on the
The evidence on the issue, whether the defendants’ chauffeur was acting within the scope of his employment at the time of the injury, warranted a finding of the facts which follow. The driver of the truck, one Stafford, at the time of the accident was and had been for more than six months in the employment of the defendants, as a chauffeur in charge of trucks. His hours of work were from eight in the morning until six at night and he had no usual dinner hour. His instructions were to use the automobile when he was going to his dinner. On the day of the accident he was instructed to go to South Boston and get some goods at the Standard Supply Company. When he got to the place the men “ were on their lunch hour and the place was closed.” He then started to drive to his mother’s house, three fourths of a mile beyond, to get his dinner, and was then going back to the Standard Supply Company to get the goods. The accident happened before he reached his mother’s house. The jury on the evidence was warranted in making the specific finding that Stafford on that particular day was instructed to use the car to go to his dinner, and in further
The defendant Samuels, called to testify by the plaintiffs, in response to questions put to him by the plaintiff, in substance testified that he heard from the chauffeur that he was on his way to dinner the day the accident happened. Samuels was then asked, “ What did he say to you? ” and replied, “ He told me he had gone to South Boston to get some goods of mine and when he got to the place it was somewhere around noon hour and the fellows who were going to give him the goods weren’t there so he thought he would run over to his house to lunch, because he lived in South Boston. I don’t remember whether he said it was on his way to lunch or on the way back that this accident happened.” Subject to the exception of the defendant, Samuels was then asked, “ What did you say to him when he told you that? ” and replied thereto “ I asked him if the girl had been badly hurt and he said, ‘ No, he didn’t think so.’ I said, ' Well, if she wasn’t badly hurt there is nothing to worry about.’ And I might have said that, ‘ There is nothing to worry about if she isn’t badly hurt.’ ” G. L. c. 233, § 22, provides: “ A party who calls the adverse party as a witness shall be allowed to cross-examine him.” Emerson v. Work, 185 Mass. 427" court="Mass." date_filed="1904-04-02" href="https://app.midpage.ai/document/emerson-v-wark-6428521?utm_source=webapp" opinion_id="6428521">185 Mass. 427. Anderson v. Middlebrook, 202 Mass. 506" court="Mass." date_filed="1909-06-22" href="https://app.midpage.ai/document/anderson-v-middlebrook-6430739?utm_source=webapp" opinion_id="6430739">202 Mass. 506. The extent of a cross-examination rests largely in the discretion of the trial judge. Perkins v. Adams, 5 Met. 44,48. Hathaway v. Crocker, 7 Met. 262, 266. Here there is no evidence of an abuse of that discretion. Moreover, the mental reaction of Samuels when he heard the story and received the reply to his question was relevant in proof that the chauffeur was actually in the performance of his duty to the defendants when he drove the automobile against the plaintiff. McKeever v. Ratcliffe, supra.
We find no error in the conduct of the trial or in the refusal to rule as the defendants requested.
Exceptions overruled.