Beaucage v. Mercer

• Decision Date: 19 October 1910
• Citation: 92 N.E. 774,206 Mass. 492
• Parties: BEAUCAGE v. MERCER. GILBERT v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

206 Mass. 492

92 N.E. 774

BEAUCAGE

v.MERCER.

GILBERT

v.SAME.

Supreme Judicial Court of Massachusetts, Berkshire.

Oct. 19, 1910.

Exceptions from Superior Court, Berkshire County; John C. Crosby, Judge.

Actions by J. H. D. Beaucage and by John A. Gilbert against William J. Mercer. Verdicts for defendant, and plaintiffs bring exceptions. Exceptions sustained.

Warner & Barker, for plaintiffs.

James Fallon and Francis Dougherty, for defendant.

HAMMOND, J.

In dealing with these exceptions we are embarrassed by the meager report of the evidence as to the precise manner in which the accident occurred, and by the disconnected way in which the parts of the charge deemed material are reported; and we proceed to the consideration of the questions of law involved not without apprehension lest something may have been omitted which, if inserted, might have materially changed the conclusion to which we have come.

As to the general doctrine of contributory and imputable negligence the jury were instructed as follows: ‘If you should find that there was any negligence on the part of either of these plaintiffs, and that such negligence contributed to their injuries, neither of them could recover. I instruct you as * * * matter of law that if one was negligent the negligence of that plaintiff is to be imputed to the other; in other words, if you should find that Beaucage was negligent in something which he did or omitted to do, which contributed to this accident, then neither he nor Gilbert could recover, and Beaucage's negligence would be imputed to Gilbert.’

To this ruling the plaintiffs excepted.

The record recites that ‘as on several former occasions, both plaintiffs were in Beaucage's automobile in the daytime * * * taking a ride together, having agreed to share equally the expenses of the trip. The automobile, which was being kept at defendant's garage, became disabled on the Dalton Road, so called, over which street cars run half-hourly into Pittsfield and past defendant's garage.’ Whether under all the circumstances of this case the agreement that the expenses should be shared equally was sufficient in law to make the ride a joint enterprise (see Adams v. Swift, 172 Mass. 521, 52 N. E. 1068), and if it was, whether the joint enterprise was in law stopped when the car became disabled, so that Beaucage in telephoning for assistance was acting in his sole capacity as the owner of the car, or whether in law it continued until the car was returned, or whether there was conflicting evidence, so that these were all questions for the jury, the record does not clearly show. The trial, however, seems to have proceeded upon the theory that the plaintiffs were engaged in a common enterprise, and that it still was in force at the time of the accident. So long as the joint enterprise was in force, the contributory negligence of one would bar a recovery by either, provided always the negligence was in a matter within the scope of the joint agreement; and if that is to be regarded as the meaning of the instruction, then it was correct. While the record is not very clear as to whether this omission to put in the qualifying clause above named was as applied to the evidence prejudicial to the plaintiffs, we are inclined to assume in favor of the defendant that it was not.

The jury were further instructed in substance that if, after the cars had been hitched together in the manner described in the evidence, the plaintiff Beaucage ‘protested and objected to the way in which, it was done, and said that it was not safe,’ and if he made this objection ‘with a full appreciation and knowledge of the dangers * * * involved in riding in the machine under those circumstances, then neither he nor the plaintiff Gilbert would be entitled to recover.’ Upon this point the judge further proceeded as follows: ‘The question is whether he apreciated the risk and...