300 Mass. 521 | Mass. | 1938
These are two actions of tort which were tried together to a jury. The first action is brought to recover compensation for personal injuries sustained by the plaintiff on August 28, 1934, while riding in an automobile owned and operated by the defendant. The second action is brought to recover consequential damages. The declaration in each case is in two counts, the first alleging negligence, and the second gross negligence and reckless and wanton conduct on the part of the defendant in operating her automobile. At the close of the evidence the plaintiffs waived the second count of their declarations. The judge denied the defendant’s motion for a directed verdict in each case. The jury returned a verdict for the plaintiff in each case, but before the verdicts were recorded the judge with the consent of the jury reserved leave to enter verdicts for the defendant. Thereafter, upon motion of the defendant, the judge entered a verdict for the defendant in each action, subject to the plaintiff’s exceptions. The plaintiff in the first action will hereinafter be referred to as the plaintiff.
No contention is made that the evidence would not warrant the jury in finding negligence on the part of the defendant in operating her automobile at the time of the accident. The bill of exceptions recites that “The issues involved . . . relate to the status of the plaintiff in the defendant’s automobile at the time of the collision.” The evidence pertinent to the determination of that question, in its aspect most favorable to the plaintiff, would warrant the jury in finding the following facts.
The plaintiff had been employed by the defendant in a dining car in Cambridge for a year prior to the accident “as a counter girl and a short-order cook.” Two weeks before the collision, the defendant had a talk with the
The burden of proof was on the plaintiff to establish by a preponderance of the evidence that at the time of the accident she was riding in the defendant’s automobile “. . . not merely as a guest but for the benefit of the defendant in the performance of something in which the defendant had an interest.” Roiko v. Aijala, 293 Mass. 149, 156. It would serve no useful purpose to review the many decisions of this court, cited by the plaintiffs and the defendant, in all of which the same principle of law just referred to is set forth as governing the determination of the question in issue
Exceptions sustained.
Judgment on the verdict returned by the jury in each case.