Chester Wheeler v. Frank Darmochwat. Perley Wheeler

• Decision Date: 27 October 1932
• Citation: 280 Mass. 553
• Parties: CHESTER WHEELER v. FRANK DARMOCHWAT. PERLEY WHEELER v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

280 Mass. 553

CHESTER WHEELER v. FRANK DARMOCHWAT. PERLEY WHEELER v. SAME.

Supreme Judicial Court of Massachusetts, Hampshire.

October 27, 1932

May 9, 1932.

Present: RUGG, C.

J., PIERCE, WAIT FIELD, & DONAHUE, JJ.

Negligence, In use of way, Motor vehicle, Proximate cause. Proximate Cause. Motor Vehicle, Operation. Evidence, Presumptions and burden of proof, Inference.

At the trial together of actions of tort respectively against the owner and the driver of an automobile, there was evidence of the following facts:

Before dark on an afternoon in May, a party of eight boys were riding in the automobile on the road between Amherst and Belchertown, the owner, the driver and a third boy occupying the front seat. The boys were

"hilarious." At one time two of them had ridden on the top of the automobile. When passing through Amherst the owner and the driver had commented on their conduct and at their direction the others then had refrained from shouting and waving at other travellers. Such practices however were resumed after leaving Amherst, and one of the boys then rode on the right running board for at least a mile and from that position waved and shouted at persons whom the automobile passed. At that time the automobile was being driven on the extreme right of the road, almost on a gravel shoulder, although the macadam was eighteen feet wide, and there was no evidence of vehicular traffic in the immediate vicinity other than the defendant's automobile. Its rate of speed was forty miles per hour and no horn was sounded. The boy on the running board then reached out his right arm to wave at the plaintiff who was walking on that side of the road in the same direction as the automobile was going, and without intention his hand and arm came in contact with the plaintiff's face, inflicting injuries. Held, that

(1) A finding was warranted that the automobile at the time of and preceding the accident was being operated negligently;

(2) An inference was warranted that both defendants knew that the boy was on the running board;

(3) The questions whether the driver should reasonably have anticipated that the boy on the running board in passing the plaintiff would act as he had acted in passing other travellers that afternoon, and, if so, whether in this particular instance the waving of his hand, not intending harm, was reasonably likely to cause injury because of the close proximity to the pedestrian in which the driver's operation of the automobile had placed him, were questions of fact for the jury;

(4) A finding was warranted that negligence of the driver was a proximate cause of the plaintiff's injuries;

(5) The evidence warranted the inference by the jury that the owner had not abandoned the control which prima facie belonged to him;

(6) A finding was warranted that the defendant owner was liable for the negligent operation of the automobile;

(7) A verdict against each defendant was warranted.

FOUR ACTIONS OF TORT, the first and second against the owner, and the third and fourth against the driver of an automobile, the negligent operation of which was alleged to have caused personal injuries to the plaintiff in the first and third actions and consequential damages to his father, the plaintiff in the second and fourth actions. Writs dated August 14, 1929.

In the Superior Court, the actions were tried together before Cox, J., who after verdicts for Chester Wheeler in the sum of $2,000, and for Perley Wheeler in the sum of $375, reported the actions for determination by this court.

The cases were submitted on briefs. J.H. Madden, for the defendants.

W.L. Stevens, J.A.G. Andre, & G.L. Burke, for the plaintiffs.

DONAHUE, J. On the evening of May 30, 1929, a party of eight boys started from Easthampton in an automobile owned by the defendant Darmochwat and driven by the defendant Wenta. These two with a third boy occupied the front seat. When they started, the five others sat in the rear seat. According to the testimony of one of the party they were all "out for a good time" and were all "hilarious." Between Northampton and Amherst two of the company, one of whom was named Baldyga, rode for a time on top of the car. The members of the party were singing and waving their hands and shouting at practically every one they passed. While going through the town of Amherst they avoided the business section. The owner and driver there commented on the conduct of the passengers and at the direction of the owner or driver they there refrained from shouting and waving at other travellers. These practices were resumed, however, after they had passed through the town, and were on the Belchertown road, where about two miles from Amherst, there was an accident causing injury to the plaintiff Chester Wheeler. For at least a mile before reaching the point where the accident occurred, Baldyga rode on the right running board and from that position waved and shouted at persons the automobile passed. About a tenth of a mile from the scene of the accident there was a knoll which obstructed the driver's view of any pedestrians who might be on the right hand side of the road going in the same direction. It was still daylight. The plaintiff Chester Wheeler and three other boys were walking single file in the same direction in which the automobile was travelling, on the right hand side of the road and on the dirt shoulder. Although there was eighteen feet width of macadam and no evidence of vehicular traffic in the immediate vicinity other than the defendant's automobile, yet it was driven on the extreme right of the road almost on the gravel shoulder where Wheeler and his companions were walking, with no horn blown and at undiminished speed which, on the testimony, might be found to be as high as forty miles an hour. As the automobile neared the boys on the gravel shoulder Baldyga, who was still on the running board hanging on to the car with his left hand, reached out his right arm to wave at them and without intention his hand or arm came in contact with the face of Wheeler and injured him. The automobile went on without stopping. By a next friend Chester Wheeler brought suits against the owner and against the driver, and his father brought suits against the same defendants for medical and hospital expenses occasioned by his son's injury. The cases were tried together. No evidence was introduced by the defendants. The defendants' motions for directed verdicts were denied. After verdicts for the...