155 Mass. 331 (1892), Randolph v. O'riordon

Citation:155 Mass. 331, 29 N.E. 583
Opinion Judge:MORTON, J.
Party Name:RANDOLPH v. O'RIORDEN et al.
Attorney:[29 N.E. 583] C.H. Crosby and W.S. Slocum, for plaintiff. H.W. Bragg, for defendant.
Case Date:January 07, 1892
Court:Supreme Judicial Court of Massachusetts
 
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Page 331

155 Mass. 331 (1892)

29 N.E. 583

RANDOLPH

v.

O'RIORDEN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 7, 1892

COUNSEL

Page 335

[29 N.E. 583] C.H. Crosby and W.S. Slocum, for plaintiff.

H.W. Bragg, for defendant.

OPINION

MORTON, J.

The presiding judge instructed the jury, in substance, among other things, that they might find one or both of the defendants liable; that, in order to find either liable, they must find that there was carelessness on the part of his driver which was the natural, probable, and proximate cause of the accident; and that, if the accident was due to the carelessness of both drivers, then both defendants were liable. He also instructed them that if one driver was careless, and his carelessness was the natural, probable, and proximate cause of the accident, and the other driver was not careless, then they should return a verdict against the defendant who was master of the

Page 336

careless driver, and for the defendant whose driver was not careless. The jury rendered a verdict against defendant O'Riorden, and for defendant Bryant. The defendant O'Riorden now claims that the jury should have been instructed also as he requested, viz., that, if the carelessness of Bryant's driver contributed to the accident, he (O'Riorden) was not liable, whether it was or was not the proximate cause of the accident. This claim rests on the position that the negligence (if any) of the driver was to be imputed to the plaintiff, and that, again, on the position that the relation of servant and master existed between them. If the plaintiff and the driver of Bryant's hack had been total strangers to each other, it is obvious that it would have been no defense for O'Riorden to say that the negligence of Bryant's driver contributed to the accident. That defense could not be availed of by him, unless there was some relation between the plaintiff and the driver which would make him responsible for or identified with his acts; and in the present case that relation, if it existed at all, must have been the relation of master and servant. The facts were that the defendant Bryant was hired by the plaintiff, Peter Randolph, to superintend the funeral of his grandchild, Bryant to furnish the carriages and drivers. Bryant furnished a hack, and a driver named Hewton,[29 N.E. 584] who had been in his employ for some time as his hackman...

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