Doherty v. Ernst
| Decision Date | 02 November 1933 |
| Citation | 187 N.E. 620,284 Mass. 341 |
| Parties | DOHERTY v. ERNST. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court of Springfield; J. E. Davis, Special Judge.
Action of tort by Daniel F. Doherty against Edward Ernst. From an order of the Appellate Division dismissing report of trial judge, who found for plaintiff in sum of $184.25, defendant appeals.
Order dismissing report affirmed.
Mallary & Gilbert, of Springfield, for appellant.
R. C. Jandreau, of Springfield, for appellee.
This is an action of tort whereby the plaintiff seeks to recover damages to his automobile, alleged to have been sustained through the negligence of the defendant in his capacity as an alleged bailee for hire.
There was evidence tending to show that the defendant operated a parking space for automobiles at the southeast corner of Railroad Avenue and Columbus Avenue in Springfield; that the sides of the lot not on a street were fenced so that an automobile could not be driven out; that the sides fronting the respective streets were level with the sidewalk; that for exists there were two driveways on the west or Columbus Avenue side of the lot, and in all other places there was a curbing five to six inches in height between the sidewalk and the street; that at about eight o'clock in the evening of September 15, 1931, the plaintiff parked his automobile on the defendant's lot intending to leave it for safe keeping while he and his wife attended a theatre; that he paid the defendant twenty-five cents which was the usual amount charged for parking, and left the automobile on the lot in the presence of the defendant; that the defendant did not give checks to his parking space patrons; that he sold gasoline, oil and tires at his parking space and when not thus engaged watched over the automobiles that were parked, moved them to different places on his lot when occasion required, and took charge of the keys of those he moved; that sometimes he asked patrons to leave their keys with him when he thought it might be necessary to move their automobiles to let others out; that the plaintiff left his key in its lock so that the defendant might move the automobile if he desired to do so, but at the place where it was parked it did not appear that there would be any occasion to move it; that the defendant saw the key when the plaintiff left the parking space, but he did not remove it; that the parking space was flood lighted; that five minutes after the plaintiff left his automobile the defendant saw a stranger drive it from the place where it was parked, across the curbing and away, and did nothing to prevent its removal; that when the plaintiff returned for his automobile and found it was not at the parking space, he inquired as to what had become of it, and the defendant told him some one had taken it five minutes after he had left it; that he asked the plaintiff why he had not locked it and the plaintiff replied that he did not do so because he left it in the parking space for safe keeping; that the police later found the automobile abandoned and in a badly damaged condition. Damages were assessed by the judge.
At the conclusion of the evidence the defendant made nine requests for rulings, all of which were granted except the second, third, fourth and ninth. The second and ninth were as follows: 2. Upon the law and all the evidence there is no evidence that the defendant was a bailee for hire. 9. Upon the law and all the evidence there is no evidence of negligence of the defendant. These requests were denied on the ground stated by the judge that he found to the contrary. The third and fourth requests were as follows: 3. The obligations of the defendant with respect to the plaintiff's car were not greater than the terms of the invitation extended by the defendant to the plaintiff. 4....
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