McDonough v. Vozzela

• Decision Date: 29 February 1924
• Citation: 142 N.E. 831,247 Mass. 552
• Parties: McDONOUGH v. VOZZELA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

247 Mass. 552

142 N.E. 831

McDONOUGH

v.VOZZELA.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 29, 1924.

Exceptions from Superior Court, Suffolk County; John F. Brown, Judge.

Action of tort by John McDonough, a minor, by his father and next friend, John J. McDonough, against Dominick Vozzela, with trustee, to recover for injuries received by being struck by an automobile belonging to the defendant. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled.

The court intructed:

‘Something has been said here about Todesca driving without a license. That is a violation of the law, and it was also a violation of the law for the defendant to allow his automobile to be driven without a license, if he knew it and knew the driver had no license. Those were violations of law, and can be used in considering the evidence of negligence, if you find the defendant negligent and that negligence had anything to do with the accident; you are to take them into account and give them such weight as you think you ought to. The fact that Frank Todesca was convicted has nothing to do with it. It is introduced simply to show you that he has been convicted, was found guilty of a criminal offense, and that he ought not to be believed on the witness stand; simply whether it affects his credibility or not; it is for you to say.’Wm. Flaherty and Jos. P. Walsh, both of Boston, for plaintiff.

C. H. Cronin, of Boston (W. A. Lackey, of Boston, on the brief), for defendant.

RUGG, C. J.

This is an action of tort to recover compensation for personal injuries received by the plaintiff by being struck by an automobile owned by the defendant. The evidence touching the manner and circumstances of the injury was conflicting and it would seem that the defendant reasonably might have expected a verdict in his favor. But we have nothing to do with the weight of the evidence and are concerned only with the questions of law.

1. There was evidence tending to show that the mother of the plaintiff, having occasion to go out of her home on the afternoon of the injury, left her youngest child, 2 years [247 Mass. 556]and 8 months of age, and the plaintff, 4 years and 5 months of age, in charge of her niece, then about 15-years old, who lived with her. The plaintiff then was in the house, but was being dressed so that he could go on the street. The niece took these two small children out for a walk, with no definite destination, holding the younger by the hand and permitting the plaintiff to run ahead, playing on the sidewalk, and calling him back from time to time. Finally the plaintiff ran quiet a distance ahead of her and crossed to the other side of the street, and she called to him when he was from 100 to 200 feet away (or further according to some evidence) to come back. As she called, an automobile passed and just then the plaintiff started to cross the street and he was almost over to her side when the automobile knocked him down. The automobile was going ‘very fast and kept going fast until the plaintiff was knocked down.’ The street was a country road and automobiles passed back and forth to some extent, but not very much. One could see up and down the street for a long distance. It was level. She did not see the automobile until it passed her. There was much evidence tending to show that the accident did not happen in this way, but in the aspect of the evidence most favorable to the plaintiff the narrative just stated might have been found to be true.

The rights of the plaintiff must chiefly be determined by the conduct of his proper custodian. Plainly the jury could find that the mother was not negligent in intrusting the plaintiff to the care of her niece. Although the case is close upon this point, it cannot quite be said as matter of law that the niece in the performance of her duty as temporary custodian of the plaintiff failed to exercise due care. Moreover, the plaintiff while too young to have much prudence cannot be pronounced as matter of law incapable of exercising any care in the circumstances confronting him. All these factors required the submission to the jury of the issue of the due care of the plaintiff, his custodian and his mother. Sullivan v. Boston Elevated Railway, 192 Mass. 37, 78 N. E. 382;Beale v. Old Colony Street Railway, 196 Mass. 119, 81 N. E. 867;Dowd v. Tighe, 209 Mass. 464, 95 N. E. 853;Ayers v. Ratshesky, 213 Mass. 589, 101 N. E. 78;Travers v. Boston Elevated Railway, 217 Mass. 188, 104 N. E. 383;Sughrue v. Bay State Street Railway, 230 Mass. 363, 119 N. E. 660. The case at bar is distinguishable from cases like Holian v. Boston Elevated Railway, 194 Mass. 74, 80 N. E. 1,11 L. R. A. (N. S.) 166,Walukewich v. Boston & Northern Street Railway, 215 Mass. 262, 102 N. E. 311,Kelley v. Boston & Northern Street Railway, 223 Mass. 449, 111 N. E. 1045,Garabedian v. Worcester Consolidated Street Railway, 225 Mass. 65, 113 N. E. 780, and Sullivan v. Chadwick, 236 Mass. 130, 127 N. E. 632.

[4] 2. There was sufficient evidence of the negligence of the driver of the automobile to require the submission of that issue to the jury. Pertinent evidence in that connection was to the effect that the street was comparatively free from traffic, that it was straight for a considerable distance with unobstructed view, that it was daylight, that the speed of the automobile was variously estimated at from seven to forty miles an hour, that the driver did not see the girl with the two children as he came along the street, that he saw the plaintiff standing in the gutter and did not see him again until after the accident, and that the plaintiff was almost across the street before he was struck, and that the driver of the automobile, who was in it alone, was not licensed to drive a motor vehicle. Quinn v. Boston Elevated Railway, 214 Mass. 306, 310, 101 N. E. 151;Sughrue v. Bay State Street Railway, 230 Mass. 363, 366, 119 N. E. 660;Fuller v. Andrew, 230 Mass. 139, 147, 119 N. E. 694;Walters v. Davis, 237 Mass. 206,129 N. E. 413;McMahon v. Pearlman, 242 Mass. 367, 370, 136 N. E. 154, 23 A. L. R. 1467.

3. The defendant was building a sewer for the city of Boston in a nearby street. Admittedly he was the owner of the automobile but was not in it at the time of the injury. On the point whether at that time it was being used in his business by his authority there was evidence that the driver of the automobile, one Todesca, was in his general employ caring for gasoline pumps and compressors, but was not employed to drive and never had driven his automobile. About half past 3 o'clock on a November afternoon the defendant instructed Todesca to go to Roslindale to get some lanterns, the store to which he was sent being about 15 minutes walk from the job. No directions were given to take the automobile, which was about 700 feet from the place where the defendant gave his orders to Todesca. Never having driven the defendant's automobile, Todesca took it on this occasion and while he was returning from the store with the lanterns the accident happened. There was also evidence that the defendant said to the father of the plaintiff shortly after the injury that ‘he sent Frank Todesca up for some lanterns; that it was getting dark and he had to get the lanterns in a hurry for a job he was doing for the city of Boston.’

[5][6][7] With the exception of the testimony just quoted, all the evidence on that point came from the defendant and a witness called by him. Of course the plaintiff was not bound by it. See Sullivan v. Boston Elevated Railway, 224 Mass. 405, 112 N. E. 1025. If all this evidence were believed, plainly the automobile was not being used at the time by the defendant's authority and hence the defendant would not be liable. Manifestly not every act performed by a servant in his master's business binds the latter. Hartnett v. Gryzmish, 218 Mass. 258, 105 N. E. 988;Marsal v. Hickey, 225 Mass. 170, 114 N. E. 301;Seaboyer v. Director General of Railroads, 244 Mass. 122, 138 N. E. 538;Porcino v. De Stefano, 243 Mass. 398, 137 N. E. 664;Phillips v. Gookin, 231 Mass. 250, 120 N. E. 691. But it is familiar law that the jury are not bound to give credit to testimony even though uncontradicted. Lindenbaum v. New York, New Haven & Hartford Railroad, ...