Hollidge v. Duncan

• Decision Date: 21 May 1908
• Citation: Hollidge v. Duncan, 199 Mass. 121, 85 N.E. 186 (Mass. 1908)
• Parties: HOLLIDGE v. DUNCAN.
• Court: Supreme Judicial Court of Massachusetts

199 Mass. 121

85 N.E. 186

HOLLIDGE v. DUNCAN.

Supreme Judicial Court of Massachusetts, Suffolk.

May 21, 1908

COUNSEL

Edward F. McClennen and Brandeis, Dunbar & Nutter, for plaintiff.

John Lowell and James A. Lowell, for defendant.

OPINION

MORTON J.

While the plaintiff was looking into a shop window on Washington street he was struck by the pole or tongue of a dump cart loaded with gravel and standing in the street parallel with the sidewalk, or by the plate glass falling from the window broken by the pole and received the injuries complained of. The horses had been unhitched from the cart and the pole 'was sticking up in the air' as a witness described it. In answer to written interrogatories from the plaintiff the defendant stated that the cart was out of order and the driver was trying to fix it and asked a bystander to assist him; that 'the bystander took hold of a blanket which was caught between the seat and the sweep of the cart and jerked it to get it free, and as he did so the perch broke and the pole swung around over the sidewalk and hit a window, breaking the glass, some of which fell on a person standing near.' The accident was described in substance as follows by a person who was passing along the street and saw it: 'He noticed that the robe was caught under the sweep and that somebody came along and pulled it that the cart lurched and the pole went a little higher and then suddenly swung around over the sidewalk and fell against the window, smashing it. He saw the plaintiff struck and fall. As the pole swung around the body of the cart fell down and appeared to be wholly disconnected.' On cross-examination this witness said that he was not sure whether the pole struck the plaintiff or the chains on it or the falling glass, but he thought that it was the falling glass. There was nothing to show how long the cart had been out of order or what caused it to be out of order. The defendant did not call the driver as a witness and did not testify himself and introduced no evidence. There was a verdict for the plaintiff and the case is here on exceptions by the defendant to the refusal of the court to give certain rulings which he requested.

The defendant contends in substance that the accident was caused by the jerking or pulling of the blanket by the bystander and that he is not liable therefor because the driver had no authority to procure assistance from the bystander. But we think that the act of the bystander must be regarded as the act of the driver. The cart was out of order and the driver was trying to fix it as he was bound to do. For that purpose he asked the bystander to assist him, and in doing so he used the assistance of the bystander as he would have used a tool or appliance which he had procured and which he must be regarded as having implied authority to procure under the circumstances. The fact that the tool or appliance was an intelligent human being does not affect the matter any more than the fact that another person held the reins did in Booth v. Mister, 7 C. & P. 66...