Dubois v. Powdrell
| Decision Date | 27 May 1930 |
| Citation | 271 Mass. 394 |
| Parties | EVANGELINE DUBOIS v. ETHEL POWDRELL. SAME v. ROBERT POWDRELL. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
April 2, 1930.
Present: RUGG, C.
J., CROSBY, PIERCE CARROLL, & FIELD, JJ.
Negligence Contributory, In use of way. Evidence, Of agency, Admissions Admitted without objection. Agency, Existence of relation.
At the trial of an action of tort for personal injuries by a child eight years of age, there was evidence that the plaintiff, a pedestrian stopped at the side of a way to allow an automobile coming from his left to pass and then immediately walked quickly across the way
"looking straight ahead toward . . . [his] own house" on the further side and "looked in no other direction"; that, when he was "one step" from his own yard, he was struck by an automobile of the defendant which had approached very rapidly from his right; and that the plaintiff could have seen the defendant's automobile if he had looked in that direction. Held, that it could not properly have been ruled as a matter of law that the plaintiff was guilty of contributory negligence.
There was evidence, at the trial of an action of tort for personal injuries sustained when the plaintiff was struck by an automobile owned by the defendant, a woman, and operated by her son, that he was in the habit of using the automobile to do errands for the defendant; and that he had used it for that purpose at a previous time on the day of the accident. A witness testified that, immediately after the accident, the son was charged with having driven fast and said, "My mother sent me to the telephone office to telephone to my father." Such testimony was admitted without objection or restriction as to its effect. The action was tried before St. 1928, c. 317, Section 1, took effect. Held, that
(1) Such testimony was relevant on the issue, whether the son, at the time of the accident, was operating the automobile as an agent of the defendant;
(2) Such testimony, having been admitted without objection or restriction, was entitled to its probative force on that issue, whether or not it was competent: no rule of substantive law prevented its consideration by the jury; (3) A finding was warranted that the son was operating the automobile as agent of the defendant at the time of the accident.
TWO ACTIONS OF TORT. Writs dated August 14, 1925. Material evidence at the trial of the actions together in the Superior Court before Keating, J., is stated in the opinion. The judge denied a motion by the defendant in each action that a verdict be ordered in his favor.
Subject to leave reserved under G.
L.c. 231, Section 120, a verdict for the plaintiff in the sum of $6,916.66 was recorded in each action. Thereafter, the judge ordered the entry of a verdict for the defendant in the first action; and denied a motion by the defendant in the second action that a verdict be entered in his favor. Both parties alleged exceptions in the first action and the defendant alleged an exception in the second action.
G.R. Farnum, for the plaintiff. W.H. Brown, for the defendants.
The plaintiff, a minor, by her next friend, brought an action of tort against Robert Powdrell, a minor, another against Ethel Powdrell, his mother, and a third against Fred A. Powdrell his father, to recover damages for personal injuries alleged to have been caused by the negligence of the minor defendant in driving an automobile owned by his mother. The cases were tried together by a judge and a jury. There was a verdict for the defendant in the case against the father. In each of the other cases the defendant's motion for a directed verdict was denied, the jury returned a verdict for the plaintiff, and leave was reserved under the statute (G.L.c. 231, Section 120) to enter a verdict for the defendant. The minor defendant's motion for the entry of such a verdict was denied, but his mother's motion was granted. Exceptions of the defendant in both actions and of the plaintiff in that against the mother bring these cases before us.
The evidence tended to show that on the afternoon of April 11, 1925, this defendant, while driving, very fast, an automobile belonging to his mother and registered in her name, on a road running in front of the house where the plaintiff lived, which was at his right as he approached, struck the plaintiff, a girl eight years old, who was crossing from the left side of the road to her house and "was almost in her own yard," and injured her.
This defendant has not argued that he was not negligent but he contends that the plaintiff was guilty of contributory negligence. The testimony most favorable to the plaintiff was given by a witness, called by her, who was looking out of the window of a near-by house when the accident happened. This witness testified that the plaintiff stopped on the left side of the road to let an automobile go by in the direction opposite to that in which the defendant was driving, and "then immediately started to cross the road," that the witness saw coming the automobile driven by the defendant after the plaintiff "had started to cross the street and was a quarter way across," that there was nothing to prevent the plaintiff's seeing it if she had looked that way, that the plaintiff "walked across the street looking straight ahead toward her own house" and "looked in no other direction," that she walked "quick" and that "one step more would have taken her into her own yard." It could not have been ruled as matter of law that the defendant had sustained the burden imposed on him by G.L.c. 231, Section 85, of proving affirmatively that the plaintiff failed to exercise due care. For her to have crossed the road quickly, "looking straight ahead toward her own house," was not necessarily negligence under the circumstances disclosed by the testimony. Tripp v. Taft, 219 Mass. 81 . Creedon v. Galvin, 226 Mass. 140 . Sarmento v. Vance, 231 Mass. 310 . Woodman v. Powers, 242 Mass. 219 .
The only issue in this case not involved in the action against the minor defendant was whether, at the time of the accident, he was the agent of his mother and engaged in her business or acting under her directions. See Dennis v. Glynn, 262 Mass 233 . An affirmative finding on...
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