Griffin v. Hustis

• Citation: 125 N.E. 387,234 Mass. 95
• Parties: GRIFFIN v. HUSTIS.
• Decision Date: 26 November 1919
• Court: United States State Supreme Judicial Court of Massachusetts

234 Mass. 95

125 N.E. 387

GRIFFIN

v.HUSTIS.

Supreme Judicial Court of Massachusetts, Berkshire.

Nov. 26, 1919.

Exceptions from Superior Court, Berkshire County; William C. Wait, Judge.

Action by Patrick J. Griffin against James H. Hustis, receiver. Verdict was directed for defendant, and plaintiff excepts. Exceptions sustained.Burns, Cummings & Rosenthal, of Pittsfield, for plaintiff.

Henry F. Hurlburt and Damon E. Hall, both of Boston, and Charles N. Stoddard, of Greenfield, for defendant.

DE COURCY, J.

The plaintiff was injured on Sunday morning, October 14, 1917, near a crossing at a grade of the Boston & Maine Railroad over the highway known as the Mohawk Trail, in the town of Charlemont. He was one of a party of six who had engaged David Bordo, the owner of a seven-passenger automobile, to take them from Pittsfield to Camp Devens and back for $30. They left Pittsfield at 4:30 a. m. At about 6 o'clock they were moving toward the crossing from the south, when a freight train approached from the east. Bordo, in order to avoid an imminent collision, turned his car off the road to the right, and it came to a stop against a pole, which was about 10 feet from the first track. The plaintiff, who was riding on the front seat, was thrown forward and injured.

1. There was evidence from which it could be found that a view of the track toward the east was obstructed by a tree-covered hill, so that one could see the track for a distance of only 180 to 200 feet when he was 100 feet south of the crossing; that many automobiles passed over this route daily; that there were no gates at the crossing, and no flagman there until 7 o'clock, or an hour after the accident; that the train approached at a speed of 30 or more miles an hour, and the engine bell was not rung nor the whistle sounded. This entitled the plaintiff to go to the jury on the issue whether negligence on the part of the defendant (who was operating the railroad) contributed to the accident at this dangerous crossing. St. 1906, c. 463, part II, § 147; Walsh v. Boston & Maine R. R., 171 Mass. 52, 58, 50 N. E. 453;Steverman v. Boston Elevated Ry., 205 Mass. 508, 91 N. E. 919.

2. As to whether the plaintiff personally was negligent: Apart from the due care statute (St. 1914, c. 553) there was affirmative evidence that when the automobile came almost to a stop, between 75 and 100 feet from the crossing, Griffin looked to the right and the left to see if there was any train coming, and did not see or hear anything to indicate the approach of one, and that when they had gone about 50 feet farther he again looked to the right, saw the engine and ‘hollered at the chauffeur there was a train coming.’ Considering, also, that the train was moving more than 40 feet a second, that the plaintiff's view of the track was so limited, and that he had a right to rely somewhat on the skill and care of the chauffeur, the issue of the personal due care of the plaintiff was for the jury. Charles v. Boston Elev. Ry., 230 Mass. 536, and cases cited at page 540, 120 N. E. 69;Morrissey v. Boston & Maine R. R., 216 Mass. 5, 102 N. E. 924.

[3][4] 3. Bordo plainly was negligent. He did not have a chauffeur's license, and his operator's license did not authorize him to operate his automobile for hire. St. 1909, c. 534, § 10; St. 1915, c. 16, § 5. Although the wet road made it difficult to stop the car, he approached this dangerous crossing at a speed of about 18 miles an hour, and did not notice the engine until his attention was called to it by the plaintiff, when he had to turn to the side of the road in order to avoid running into the train. Pigeon v. Mass. Northeastern St. Ry., 230 Mass. 392, 119 N. E. 762; St. 1917, c. 246, § 3. On the undisputed evidence however Bordo was not the plaintiff's servant, but was an independent contractor. Winslow's Case, 232 Mass. 458, 122 N. E. 561. Accordingly the plaintiff would not be concluded by Bordo's negligence under the law of principal and agent. Tornroos v. R. H. White Co., 220 Mass. 336, 107 N. E. 1015.

4. A closer question is whether the chauffeur's lack of due care is to be imputed to the plaintiff. Some of the plaintiff's testimony on cross-examination indicates ‘his voluntary, unconstrained, noncontractual surrender of all care for himself to the caution of the driver.’ Shultz v. Old Colony St. Ry., 193 Mass. 309, 323, 79 N. E. 873, 878,8 L. R. A. (N. S.) 597, 118 Am. St. Rep. 502,9 Ann. Cas. 402. Strongest against him are the following questions and answers:

‘Q. * * * Then is it fair to say that throughout this trip until the accident happened you placed your reliance on the chauffeur to look out for your safety in the driving of that car? Is that a fair statement? A. Yes, sir.

‘Q. Then your look to the right and left was a mere casual look, because you were relying on the chauffeur to look out for you? Isn't that a fair statement? A. Well, I looked.

‘Q. That is as he stopped there and you, relying on him to look out for you, looked to the right and left in a casual way, didn't you? A. More than casual.

‘Q. You looked to see what there was to see, didn't you? A. I looked to see if there was any trains coming in either direction.

‘Q. But you were relying on Bordo to look out for you in the driving of that machine? A. Surely.

‘Q. Absolutely? That's correct? A. Why yes; he had full charge of the machine.

‘Q. And you relied on him absolutely to look out for you in the driving of that machine, didn't you? A. Yes, sir.’

But the jury could say that while the plaintiff relied upon Bordo so far as the operation of the machine was involved, he did not rely...