Guy v. Union St. Ry.
| Decision Date | 09 January 1935 |
| Citation | 289 Mass. 225,193 N.E. 740 |
| Parties | GUY v. UNION ST. RY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Exceptions from Superior Court, Bristol County; Walsh, Judge.
Action by Rose Guy against Union Street Railway. The jury found for defendant, and plaintiff brings exceptions.
Exceptions overruled.
H. W. Radovsky and I. H. Simon, both of Fall River for plaintiff.
T. F O'Brien and S.E. Bentley, both of New Bedford, for defendant.
This is an action of tort to recover for personal injuries sustained by the plaintiff, as a result of the alleged negligent operation of one of the defendant's street cars which came in collision with the plaintiff's automobile on July 3, 1929, in the town of Fairhaven, Massachusetts. The defendant answered general denial and contributory negligence.
The case was tried to a jury and there was a finding for the defendant. It is before this court on the plaintiff's exceptions to the portions of the judge's charge that (a) imputed the negligence of the plaintiff's husband to her (b) related to sudden emergency, and (c) in substance gave the defendant's requests numbered 1 and 2,[*] and also exceptions to certain rulings as to the admission of evidence, which is hereinafter stated.
The accident happened at the corner of Main Street and Linden Avenue in said town of Fairhaven. Main street runs north and south, is about twenty-three feet wide with a set of car tracks in the middle of it. Linden Avenue runs east and west but does not cross Main Street and is twenty-seven feet in width. On July 3, 1929, the plaintiff owned a registered automobile, in which she was riding at the time of the accident with her husband driving. Immediately preceding the accident they were riding westerly on Linden Avenue at a speed of about ten or fifteen miles an hour. At the intersection of the street and avenue the plaintiff and her husband saw a street car coming south from their right, about fifty feet away. The husband made a turn into Main Street and went south. When the automobile was about twenty feet south of the south line of the avenue it was struck by the street car, the impact driving it across the street and onto the westerly sidewalk, then southerly along the sidewalk, across Winslow Court, and head on against a pole at the corner of Winslow Court and Main Street.
The husband of the plaintiff testified that in July, 1929, when the accident happened, he was a dry goods peddler; that on this particular afternoon he was going out for business and his wife asked him to take her to her sister's house. The judge in his charge stated, without objection, that the automobile was owned by Mrs. Guy, and her husband was driving her on this particular day over to town, or to New Bedford, where she was to make a call or do some errands; and he instructed the jury that in the circumstances he had described Forecasting that the quoted instructions might be given if the facts stated by the judge were uncontrolled by other evidence, the plaintiff ‘ offered to show that this automobile was loaned to the plaintiff's husband for his business and always had been used by him in his business.’ She also offered to show that on that afternoon her husband was using the automobile for his business, but on the way to his business at her request he was taking her to her sister's. Subject to the plaintiff's exception this offer of proof was excluded. The plaintiff then testified that she had been out in the automobile with her husband on prior occasions, and she offered ‘ to show that on this occasion as well as on any other occasion at no time did the plaintiff manifest any control over her husband, either in the car or out of the car, as to its operation.’ This offer of proof was also excluded, subject to the plaintiff's exception.
It is plain that the automobile was driven from the house of the plaintiff by her husband at her request, and equally plain that it was not used by her husband or intended by the plaintiff that it should be used in his business until after the plaintiff had been taken to her sister's house. It is conceivable that the plaintiff, although present in her registered automobile, could have divested herself of all right to operate it or to control its operation by her husband. Corliss v. Keown, 207 Mass. 149, 150, 93 N.E. 143; Wheeler v. Darmochwat, 280 Mass. 553, 558 183 N.E. 55. But the fact alone that she did not exercise control would not be sufficient to show abandonment of control. Foley v. Hurley (Mass.) 193 N.E. 2. Here the offer of proof went only so far as to show, if the evidence supporting it were believed, that the plaintiff on other occasions, as well as on the instant occasion, had not manifested any control over her husband either in the automobile or out of it as to its operation. It is plain the offer of proof would not warrant an affirmative finding that the husband was not the agent of the plaintiff while the automobile was being used in the sole interest of the plaintiff. Ballou v. Fitzpatrick, 283 Mass....
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