Arnold v. Brereton

Decision Date23 November 1927
Citation261 Mass. 238,158 N.E. 671
PartiesARNOLD v. BRERETON.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Appeal from the District Court of Springfield; James E. Davis, Special Judge.

Action by Joseph Arnold against Archibald G. Brereton. From an order of the Appellate Division dismissing a report from the district court, which found for plaintiff, defendant appeals. Affirmed.

1. Master and servant k330(1)-Plaintiff suing for damage to automobile by defendant's automobile truck must prove that driver was engaged in and about defendant's business.

In action for damage to automobile by negligent operation of defendant's automobile truck by his servant, plaintiff was bound to prove that such servant was engaged in and about master's business at time of accident.

2. Master and servant k330(1)-Driver's active service for automobile truck owner at time of accident cannot be found merely from his general employment as driver.

Truck driver's service for owner cannot be found to have been active at time of accident from mere fact that he was in owner's general employment as driver of truck.

3. Master and servant k330(3)-Evidence held to warrant finding that automobile truck driver entered street to obtain gasoline in performance of work for owner.

In action for damage to automobile struck by defendant's truck, evidence held to warrant finding that truck driver, while engaged in work within scope of his employment by defendant, was compelled to procure gasoline for truck, entered street where accident occurred in obedience to such impulsion, and was authorized by defendant to obtain gasoline at garage on such street.

4. Municipal corporations k706(3)-Mere fact that automobile skids is not evidence of negligence.

The mere fact that an automobile skids or slips in the road is not evidence of negligence.

5. Municipal corporations k706(5)-Evidence held to warrant finding that driver of truck, skidding on icy street and striking automobile, was negligent.

In action for damage to automobile struck by defendant's truck, passing from rear, evidence that street was icy and slippery, that passage was blocked by approaching automobile, and that speed of truck was fast, held to warrant finding that driver should have known that application of brakes would be likely to cause truck to skid or slip, and was negligent in driving truck into street.

William H. Martin, of Springfield, for appellant.

Allen, Yerrall & Bellows, of Springfield, for appellee.

PIERCE, J.

The case is before this court on the appeal of the defendant from an order, ‘Report Dismissed,’ of the appellate division for the Western district. The action is one of tort to recover for damage to the plaintiff's automobile, caused by the negligent operation of the defendant's automobile by his servant while engaged in his business. After a hearing before a special justice of the district court of Springfield, the report was established by the presiding justice of the appellate division under rule 30 of that court. At the close of the evidence, the special justice refused to rule:

‘1. Upon all the evidence the plaintiff is not entitled to recover, and finding should be for the defendant.’ ‘5. The plaintiff was negligent and not in the exercise of due care.’

The request numbered five is not argued and is taken to be waived.

Disregarding the evidence for the defendant, and regarding the evidence in its aspect most favorable to the contention of the plaintiff, the fact disclosed in the report are in substance as follows: About noon on February 23, 1926, the plaintiff drove an Essex sedan car from Main street, Springfield, west into Bliss street, and proceeded down Bliss Street, a distance of about 50 feet to a point about twenty feet east of the Bliss street gasoline station. There were trucks parked on both sides of the street, which was icy and slippery. An automobile was coming in the opposite direction, making it impossible for the plaintiff to continue in the direction he was traveling until this...

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22 cases
  • Curtis v. Ficken
    • United States
    • Idaho Supreme Court
    • November 30, 1932
    ... ... Hence there is no ... presumption of negligence under which the doctrine of res ... ipsa loquitur is applicable. (Arnold v. Brereton, ... 261 Mass. 238, 158 N.E. 671; Bank v. Satran, 266 ... Mass. 253, 165 N.E. 117; Barret v. Caddo Transfer & W ... Co., 165 La ... ...
  • Ernest Williamson v. R. Lynn Clark
    • United States
    • Vermont Supreme Court
    • February 13, 1931
    ... ... DeAntonio v. New ... Haven Dairy Co., 105 Conn. 663, 136 A. 567; ... Gates v. Crane Co., 107 Conn. 201, 139 A ... 782; Arnold., 107 Conn. 201, 139 A ... 782; Arnold v. Brereton ... ...
  • Williamson v. Clark
    • United States
    • Vermont Supreme Court
    • February 13, 1931
    ...control. DeAntonio v. New Haven Dairy Co., 105 Conn. 663, 136 A. 567; Gates v. Crane Co., 107 Conn. 201, 139 A. 782; Arnold v. Brereton, 261 Mass. 238, 158 N. E. 671; Davis v. Brown, 92 Cal. App. 20, 267 P. 754; King v. Wolf Grocery Co., 126 Me. 202, 137 A. 62; Overstreet v. Ober, 14 La. Ap......
  • Levin v. Twin Tanners
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • March 2, 1945
    ...be predicated. Loftus v. Pelletier, 223 Mass. 63. Lambert v. Eastern Massachusetts Street Railway, 240 Mass. 495 , 499. Arnold v. Brereton, 261 Mass. 238 , 241-242. Hiller v. Desautels, 269 Mass. 437. Hennessey Moynihan, 272 Mass. 165 . In the present case there was evidence that under espe......
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