Facteau v. Gould

• Decision Date: 29 October 1941
• Citation: 37 N.E.2d 124,310 Mass. 105
• Parties: EMMA FACTEAU v. JACQUELIN P. GOULD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

310 Mass. 105

37 N.E.2d 124

EMMA FACTEAU v. JACQUELIN P. GOULD.

Supreme Judicial Court of Massachusetts, Franklin.

October 29, 1941

September 17, 1941.

Present: FIELD, C.

J., QUA, DOLAN COX, & RONAN, JJ.

Negligence, Motor vehicle.

A finding of negligence of the owner and operator of an automobile would have been warranted by evidence that, while the automobile was being operated in a careful and prudent manner, its wheel left its axle, rolled onto an adjacent lawn, and struck and injured the plaintiff; that the wheel could not have come off unless the nuts on all five stud bolts, which were visible and attached it to the brake drum, first had come off; that no nuts were found around the automobile; that, "if the nuts started to come off," one operating the automobile "would naturally feel a little wavering in the front end."

TORT. Writ in the District Court of Franklin dated October 15, 1940. On removal to the Superior Court, the action was tried before Donnelly J. Besides evidence deseribed in the opinion, there was the following testimony by a witness called by the plaintiff as an expert: Q. "If the nuts started to come off, what would be the effect on the car?" A. "Well, the person would naturally feel a little wavering in the front end, though a person who has not driven too much might not notice it, because, of course, that stud fills this hole until that is withdrawn, but they will wiggle." -- Q "What would be the effect if one nut came off? What would be the effect of that in your judgment? If one of those nuts came off, what would be the effect of it upon the running of the car?" A. "Wouldn't be anything or perhaps a slight creaking noise." -- Q. "Before it could separate, all of them would have to come off?" A. "Yes." -- Q. "What would be the effect of running the car if one or two of the nuts got off or became loose? Would it have any effect upon the other lugs or the nuts?" A. "No, not if the others were up tight."

A verdict was ordered for the defendant. The plaintiff alleged exceptions.

H. J. Field, for the plaintiff. C. Fairhurst, for the defendant.

QUA, J. The plaintiff, while upon a settee on a lawn near a public highway, was struck and injured by the left front wheel of an automobile owned and operated by the defendant. The wheel had left the automobile at a sharp bend in the way and had rolled up a slight incline on to the lawn. The defendant was operating the automobile in a careful and prudent manner.

The evidence upon which the plaintiff relied to carry the case to the jury was in substance this: The wheel of the defendant's automobile was attached to the brake drum by five stud bolts which projected from the drum. The wheel was held upon the stud bolts by nuts screwed on the bolts. The wheel could not come off the stud bolts until all five nuts had come off. The nuts were outside the hub cap and were visible. After the accident the stud bolts were still in position. Nothing was missing except the five nuts. The wheel "had simply come off of" the five stud bolts. The...