Deyette v. Boston Elevated Ry. Co.

• Decision Date: 30 March 1937
• Citation: 297 Mass. 129,7 N.E.2d 430
• Parties: ANNA MARIE DEYETTE v. BOSTON ELEVATED RAILWAY COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

297 Mass. 129

7 N.E.2d 430

ANNA MARIE DEYETTE v. BOSTON ELEVATED RAILWAY COMPANY.

Supreme Judicial Court of Massachusetts, Essex.

March 30, 1937

March 3, 1937.

Present: RUGG, C.

J., PIERCE, FIELD LUMMUS, & QUA, JJ.

Agency, What constitutes. Negligence, Imputed. Motor Vehicle, Operation.

Findings were warranted that the owner of an automobile, who had bought it on an understanding with her son that he would drive and maintain it and could use it whenever he pleased, had surrendered the right to control it to him at the time of an accident occurring while she was riding in it, and that the relationship of principal and agent did not exist between them; and a ruling was not required that his negligence contributing to the accident must be imputed to her.

TORT. Writ in the Superior Court dated October 13, 1933. At the trial before Baker, J., there was a verdict for the plaintiff in the sum of $2,000. The defendant alleged exceptions.

J. F. Doyle, for the defendant. E. S. Underwood, for the plaintiff.

PIERCE, J. This is an action of tort, in which the plaintiff seeks to recover damages for personal injuries sustained by her and damage to her automobile in which she was riding when it collided with a bus of the defendant company in Wilmington, Massachusetts.

At the close of the evidence the defendant seasonably requested the judge to rule as follows: "1. Upon all the evidence the plaintiff was in the legal control of the automobile in which she was riding at the time of the accident. 2. If the jury find that the operator of the automobile in which the plaintiff was riding was negligent and that such negligence contributed in a material degree to cause the accident the plaintiff is not entitled to recover." "4. On all the evidence in this case any negligence of the operator of the plaintiff's automobile is imputable to the plaintiff." These requests were denied and the defendant duly excepted.

The evidence relating to the negligence of the defendant, and the due care of the plaintiff and of the operator of her automobile is not contained in the bill of exceptions; these questions therefore, are not before this court. The only question now before this court is whether the trial judge on the evidence shown in the bill of exceptions erred in refusing to give the defendant's requests for rulings.

The evidence in its aspect most favorable to the plaintiff discloses that the plaintiff owned the automobile which was in collision with the defendant's bus; that the operator of the automobile at the time of the occurrence of the accident which resulted in the plaintiff's injuries was her son, John, then more than twenty-one years of age. The evidence warranted the jury in finding that the plaintiff did not operate automobiles that she bought the automobile in question with the understanding that John would drive and maintain it; that maintaining it he would have the privilege of using it whenever he pleased; that on the day of the accident he told his mother that he would like to use it; that he and a young lady had planned to take another friend to Lincoln Massachusetts, to the friend's place of employment; that he invited the plaintiff to ride with him; that when he first planned to go he did not plan to take his mother and he had no particular destination except to go to Lincoln, which was to be his final destination, but he did not go there directly; that his mother sat in the front seat with him; that they rode to New Hampshire; that while in New Hampshire in the neighborhood of some friends of the plaintiff, he asked her if she would like to stop at the friends' house; that they did so for a few minutes and then proceeded in the general direction of Lincoln, Massachusetts; and that they were on their way there, in Wilmington, Massachusetts, when the accident occurred.

On cross-examination the son testified, in substance, that he had learned before the trial that it might be important to his mother's case whether he was in control of the automobile; that he had talked this over with the lawyers in the case; that he had told them, "my mother owns the car"; that "she bought it and paid for it but I was boss of it that day"; "that his mother rode with him on the front seat"; that his mother did not know...