Seaboyer v. Director General of Railroads
| Citation | 244 Mass. 122 |
| Parties | CHARLES E. SEABOYER, administrator, v. DIRECTOR GENERAL OF RAILROADS. |
| Decision Date | 28 February 1923 |
| Court | United States State Supreme Judicial Court of Massachusetts |
December 7, 8 1922.
Present: RUGG, C.
J., DE COURCY CROSBY, PIERCE, & CARROLL, JJ.
Agency, Scope of employment. Evidence, Presumptions and burden of proof. Motor Vehicle.
Where, at the trial of an action for personal injuries and death alleged to have been caused by negligence of an employee of the defendant there is no evidence tending to show that in committing the act of negligence the employee was acting within the scope of his employment and his testimony tends to show that he was not so acting, a verdict for the defendant properly may be ordered.
In an action for personal injuries and death caused by negligence of an employee of the Director General of Railroads, the defendant in the operation of an electric express truck, mere ownership of the truck by the defendant is not sufficient to fasten liability upon the defendant where there is no evidence tending to show that in operating the truck the employee was acting within the scope of his employment.
At the trial above described, there were in evidence rules of the defendant prohibiting the operation of trucks by helpers and, except in circumstances not here material, by others than licensed operators. The employee, with whose negligence it was sought to charge the defendant, was a helper and was not a licensed operator. When the accident occurred, the regular operator had gone to the defendant's office to turn in his money. Evidence was admitted tending to show that the negligent helper had driven the truck on one occasion about a week before the accident in issue when the regular operator was on the truck; and another helper testified that he moved a truck upon which he was helper to the parking place alone all the time, that no one gave him the privilege of operating a car without a license, and that he had seen others, mostly helpers, moving trucks and taking them alone to the parking place when the regular drivers were turning in their money.
Held, that the evidence did not warrant a finding that the rule to the effect that trucks could not be operated by one without a chauffeur's license had been waived or had become a dead letter.
TORT, originally against American Railway Express Company, and later by amendment against "James C. Davis, Agent for Director General under Transportation Act of 1920," for conscious suffering and the causing of the death of Louis Seaboyer, the plaintiff's intestate, who was crushed between motor trucks of the defendant upon its premises adjoining Haverhill Street and beside the North Station in Boston. Writ dated August 12, 1919.
In the Superior Court, the action was tried before Hall, C.J.
Material evidence is described in the opinion. At the close of the evidence, upon motion by the defendant, a verdict was ordered for the defendant and the Chief Justice reported the action for determination by this court upon the stipulation that, if the plaintiff was entitled to go to the jury on the counts for conscious suffering, judgment for the sum of $500 was to be entered for him; if not, judgment was to be entered for the defendant on those counts. If the plaintiff was entitled to go to the jury on the counts for death, judgment was to be entered for him in the sum of $7,000; if not, judgment was to be entered for the defendant on the verdicts on those counts.
W. E. Sisk & R.
L. Sisk, for the plaintiff, submitted a brief.
A. M. Pinkham, for the defendant.
This is an action of tort to recover damages for the conscious suffering and death of the plaintiff's intestate, who received mortal injuries on May 31, 1919, through the negligence of one driving an electric track by backing it with such force against a stationary truck as to cause it to be pushed upon him. The one driving the...
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