Brown v. Hathaway Bakeries, Inc.

• Decision Date: 06 August 1942
• Citation: 312 Mass. 110,43 N.E.2d 328
• Parties: BROWN v. HATHAWAY BAKERIES, Inc. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

312 Mass. 110

43 N.E.2d 328

BROWN

v.HATHAWAY BAKERIES, Inc. (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

Aug. 6, 1942.

Exceptions from Superior Court, Suffolk County; Walsh, Judge.

Personal injury action by Francis Brown, p. p. a., and by Meddie W. Brown for consequential damages against Hathaway Bakeries, Inc. On plaintiffs' exception to action of judge in directing verdict for the defendant on certain counts, and to judge's action in entering a verdict for defendant on count as to which jury had returned verdict for plaintiffs.

Exceptions to action in directing verdict overruled, and exceptions to entering verdict for defendant after jury had returned verdict for plaintiffs sustained and judgment entered on verdict returned by jury. R. E. McCarthy and R. A. Shea, both of Boston, for plaintiffs.

T. H. Mahony and J. C. Gahan, Jr., both of Boston, for defendant.

Before FIELD, C. J., and DONAHUE, QUA, DOLAN, and RONAN, JJ.

DOLAN, Justice.

These are two actions of tort, the first having been brought to recover compensation for personal injuries alleged to have been sustained by the minor plaintiff, and the second to recover consequential damages. The cases were tried to a jury and at the close of the evidence the judge directed a verdict for the defendant in each case on counts numbered 2, 3 and 4 of the declaration, subject to the plaintiffs' exceptions. The jury returned a verdict in each case for the plaintiff on count 1 of the declaration, alleging negligence on the part of the defendant, and the judge, having reserved leave to enter a verdict for the defendant on that count, did so upon motion of the defendant, subject to the plaintiffs' exceptions.

On October 1, 1938, one Steele, who was employed by the defendant as a retail bakery salesman, was travelling over his route with a horse and wagon owned by the defendant. The horse, called ‘Ginger,’ was ‘a very lively horse.’ He ‘had a habit of moving on to the next stop while * * * [Steele] was in a customer's house.’ The same route was traversed six days in each week. Ginger's conduct was reported by Steele to one Cleary, who was in charge of the defendant's stable, and as a result Steele was ‘given a weight of about ten or fifteen pounds to hitch to the horse's bit.’ On the day that the accident occurred Steele, notwithstanding that on more than twenty occasions prior thereto the horse had moved on in his absence, entered a customer's house on the westerly side of Bradley Street, in Somerville, without hitching the weight to the horse. Before entering he saw several children playing on the sidewalk ‘near the wagon.’ When he entered the home of that customer the horse was facing in a southerly direction toward Pearl Street. Leaving that home Steele proceeded directly across the street to the home of another customer, a Mrs. Emerson, which he entered without attaching the weight to the horse. ‘If Ginger had to wait a while for him to come back Ginger would turn around in the street and stop in front of Emerson's.’ Steele remained in the Emerson home for ‘about five or ten minutes.’ Ginger following his accustomed habit, ‘turned around in the street and came to a stop in front of Emerson's facing northerly toward Radcliffe Road.’ After stopping he ‘started running * * * started to go fast.’

The minor plaintiff (hereinafter referred to as the plaintiff), who was ten years of age, had been standing on the westerly sidewalk of Bradley Street, and saw the horse start to run toward Radcliffe Road. The horse came toward him and passed him and he ‘went after the horse and wagon; * * * he ran as fast as he could.’ Before he started to run he saw ‘kids in the street * * * at the intersection of Radcliffe Road and Bradley Street.’ They ‘were half and half in Bradley Street and Radcliffe Road.’ He overtook the wagon, in which ‘there was no step just a little platform.’ He jumped for the platform and one of his feet ‘got inside of the wagon * * * he tried to grab something and then fell and * * * the wagon wheel went over his right leg.’ When Steele came out of the Emerson house he saw that ‘his wagon was gone * * * [and] he * * * [Steele] started to trot.’ The horse and wagon were then almost up to Radcliffe Road. He ‘hollered ‘Whoa” and the horse stopped. The horse had ‘gathered speed as he went along’ and ‘was running when he was stopped.’ The plaintiff was then lying in the street ‘fifteen or twenty feet south and to the rear of the wagon.’

The plaintiffs have not argued their exceptions to the action of the judge in allowing the defendant's motion for a directed verdict on counts numbered 2 and 4 of the declaration in each case. We treat these exceptions as waived. The sole questions for determination are whether the evidence warranted the jury in finding, as they must have, that the plaintiff's injury was caused by the negligence of the defendant, and that the plaintiff was not guilty of contributory negligence.

In Woodman v. Haynes, 289 Mass. 114, 193 N.E. 570, the principles governing liability for...