Nichols v. Rougeau
| Decision Date | 09 November 1933 |
| Citation | 187 N.E. 710,284 Mass. 371 |
| Parties | NICHOLS v. ROUGEAU. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court of Northern Berkshire; Phelps, Judge.
Action of tort by Harry R. Nichols against Albert E. Rougeau. From an order of the Appellate Division for the Western district dismissing a report from the district court finding in favor of the plaintiff in the sum of $1,200, the defendant appeals.
Order affirmed.
V. O. Cote, of North Adams, for appellant.
E. K. McPeck and F. W. Cassidy, both of Adams, for appellee.
This is an action of tort to recover damages for personal injuries received by the plaintiff while riding upon a truck owned and operated by the defendant.
The report contains all the evidence material to the questions reported and in substance is as follows: One Pringle, a truckman in North Adams, employed the defendant, who was also engaged in a general trucking business, to transport a pool table from one residence to another in North Adams. The compensation to be paid the defendant therefor was to be computed upon the basis of the time taken to do the work. Pringle also employed the plaintiff to assist the defendant in loading, transporting and delivering the table. With the assistance of the plaintiff the defendant loaded the table onto the truck placing it on the open platform, but did not in any way fasten it thereto. The plaintiff, under instructions from Pringle, rode upon the platform of the truck for the purpose of steadying the table and preventing it from sliding. There was evidence tending to show a custom among truckmen that, where articles are being transported for short distances and are not securely bound to the truck and require steadying, a helper is carried on the rear of the truck to protect the articles so transported. The defendant testified that he had no knowledge of such a custom, and that he did not consider it necessary for the plaintiff to be on the truck. When the truck reached the place where the table was to be delivered, the defendant backed it unexpectedly and with force into the driveway; one wheel struck a curbing about nine inches above the edge of the gutter and the truck came to a sudden stop. The plaintiff at that time was standing on the rear of the truck, supporting himself by holding onto the railing, and with one foot against the pool table to steady it. The truck was backed with such force that the contact with the curbing and its sudden stopping threw him off his feet in such a manner as to strike his knee cap causing the injuries complained of in this action.
The judge found that the plaintiff was a passenger for hire, that the defendant was an independent contractor, and that the plaintiff and the defendant were not engaged in a joint enterprise. It was further found that the defendant was in sole control of the operation of the truck, and that neither Pringle nor the plaintiff execised any control over its operation; that the defendant either knew that the plaintiff was upon the truck at the time of the accident or by the exercise of reasonable care and diligence should have known of his presence there; that the defendant was guilty of ordinary negligence by driving the truck backward suddenly and without warning to the plaintiff and striking the curbing with such force as to cause injury to him.
The plaintiff filed eleven requests for rulings, all of which were given. The defendant filed eight requests for rulings, one of which was given and the others were refused. The judge found for the plaintiff and assessed damages in the sum of $1,200.
The appellate Division found that there was no prejudicial error in the refusal to rule as requested by the defendant, and that there was no error in the rulings made, and ordered the report dismissed. The defendant appealed.
A finding was warranted that at the time the plaintiff was injured he was in the exercise of due care.
The defendant contends that the plaintiff was not a passenger for hire as found by the judge, and therefore that the defendant could be liable only for gross negligence. The defendant, having been employed by Pringle, had an interest in seeing that the table was not damaged in transportation. If so damaged as the result of his negligence, he would be responsible therefor. The presence of the plaintiff, who accompanied the defendant on the truck to keep the table in place as it had not been fastened thereto or secured in any way, could be found to have been with the assent and approval of the defendant and thereby to have conferred upon him a pecuniary benefit in the performance of something in which he had an interest. Baker v. Hurwitch, 265 Mass. 360, 361, 164 N. E. 87, and cases cited. It could not properly have been ruled that the plaintiff was on the truck as a mere licensee or as an...
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Helen O. Russell, Adm'x v. Martin Pilger Et Als
... ... term and thus not a guest within the purview of the statute ... Blashfield Cyclopedia of Automobile Law, (1935 ed.) Sec ... 2293; Nichols v. Rougeau , 284 Mass. 371, ... 187 N.E. 710. But we take a broader view of the legal ... significance of the facts in this case. It is apparent ... ...
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Rice & Lockwood Lumber Co. v. Boston & M.R.R.
...siding. A. J. Tower Co. v. Southern Pacific Co., 184 Mass. 472, 69 N.E. 348;Barrie v. Quinby, 206 Mass. 259, 92 N.E. 451;Nichols v. Rougeau, 284 Mass. 371, 187 N.E. 710;Remington v. Pattison, 264 Mass. 249, 162 N.E. 347;Baccari v. B. Perini & Sons, Inc., 293 Mass. 297, 199 N.E. 912; Am. Law......
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Russell v. Pilger, 76.
...not a guest within the purview of the statute. 4 Blashfield Cyclopedia of Automobile Law and Practice, 1935 Ed., § 2293; Nichols v. Rougeau, 284 Mass. 371, 187 N.E. 710. But we take a broader view of the legal significance of the facts in this case. It is apparent that the purpose for the p......