Dumas v. Ward

• Decision Date: 27 February 1925
• Citation: 251 Mass. 497,146 N.E. 709
• Parties: DUMAS v. WARD (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

251 Mass. 497

146 N.E. 709

DUMAS

v.WARD (two cases).

Supreme Judicial Court of Massachusetts, Worcester.

Feb. 27, 1925.

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

Separate actions by Eva M. Dumas and Ovide A. Dumas against John C. Ward were tried together. The jury found for plaintiffs. On exceptions of defendant to admission of testimony and refusal of instructions Exceptions overruled.

John F. McGrath, of Fitchburg, J. Joseph MacCarthy, of Worcester, and Francis T. Mullin, of Rochdale, for plaintiffs.

Marvin M. Taylor, of Worcester, for defendant.

PIERCE, J.

These are actions of tort brought by the plaintiffs, who are husband and wife, to recover damages for personal injuries sustained by a collision of two automobiles, one owned by Eugene E. McCarthy and the other by the defendant, John C. Ward. The cases were tried together to a jury with two other cases, Ward v. McCarthy and McCarthy v. Ward. In the lastnamed cases the jury found for the defendants. In the two entitled Dumas v. Ward, the jury found in each case for the plaintiff. The same exceptions to the admission of testimony and to the refusals of the presiding judge to instruct the jury as requested were saved by the defendant in each case.

The facts appearing in the meager record are, in substance, that on the night of the accident the plaintiff Mrs. Dumas became apprehensive that she was about to be confined and called a physician, who advised the plaintiff Mr. Dumas to take his wife at once to a hospital; that the physician suggested that the husband get one McCarthy, who lived directly across the street, to take them. It further appears that McCarthy at that time was doing a taxi business, carrying people around for hire if they wanted him to do so. It further appears that at a quarter of 1 in the morning Dumas saw McCarthy and asked him to carry himself and his wife to the Memorial Hospital in Worcester; that McCarthy ‘said, ‘Certainly,” and thereafter drove his machine with the plaintiffs riding in it until the collision with the machine of the defendant on Main street, Worcester. Subject to the exception of the defendant, McCarthy was allowed to answer, ‘No, sir,’ to the question, ‘Were you to get any pay?’ ‘No, sir,’ to the question, ‘Was there any agreement you were to be paid for this?’ and ‘Just as a neighborly act, naturally as anybody would,’ to the question, ‘Were you doing it as a neighborly act?’

At the close of the evidence the defendant duly requested the following instructions to the jury:

‘1. If the negligence of the plaintiff, McCarthy, contributed to the accident, he cannot recover.

‘2. If the negligence of the plaintiff, McCarthy, contributedto the accident, the plaintiffs. Ovide and Eva Dumas, cannot recover.

‘3. Upon all the evidence as to the plaintiff, McCarthy, bringing the plaintiffs, Ovide and Eva Dumas, in his car to the point of accident, if the negligence of the plaintiff, McCarthy, contributed to the accident which there took place no one of the plaintiffs, McCarthy, Ovide and Eva Dumas, can recover.

‘4. Upon the request of the plaintiff, Ovide Dumas, to the plaintiff, McCarthy, that he take him and his wife to the Memorial Hospital, if nothing whatsoever was said as to whether the plaintiff, McCarthy, was or was not to be paid for so taking them, there was a legal presumption that the services of the plaintiff, McCarthy, were for hire and were not gratuitous.

‘5. If the plaintiff, McCarthy, conveyed the plaintiffs, Ovide and Eva Dumas, to Worcester upon the request of Ovide Dumas that he should take them to the Memorial Hospital in said Worcester, then the plaintiffs, Ovide and Eva Dumas, were not guests or...