Smith v. Rapid Transit

• Citation: 317 Mass. 469,58 N.E.2d 754
• Parties: BETTY SMITH v. RAPID TRANSIT INC.
• Decision Date: 04 January 1945
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

317 Mass. 469

58 N.E.2d 754

BETTY SMITH v. RAPID TRANSIT INC.

Supreme Judicial Court of Massachusetts, Suffolk.

January 4, 1945

October 3, 1944.

Present: FIELD, C.

J., LUMMUS, QUA RONAN, & SPALDING, JJ.

Motor Vehicle Ownership. Personal Property, Ownership.

The mere facts that a defendant had the sole franchise for operating a bus line on a certain street and that according to the defendant's running schedule one of his buses might have been on that street at about the time when a bus caused injury to the plaintiff's automobile there, did not warrant a finding that the bus causing the injury was owned by the defendant.

TORT. Writ in the Municipal Court of the City of Boston dated May 13, 1943.

Upon removal to the Superior Court, the action was tried before Buttrick, J.

H. L. Barrett, for the plaintiff. W. I. Badger, Jr., for the defendant.

SPALDING, J. The decisive question in this case is whether there was evidence for the jury that the plaintiff was injured by a bus of the defendant that was operated by one of its employees in the course of his employment. If there was, the defendant concedes that the evidence warranted the submission to the jury of the question of the operator's negligence in the management of the bus. The case is here on the plaintiff's exception to the direction of a verdict for the defendant.

These facts could have been found: While the plaintiff at about 1:00 A.M. on February 6, 1941, was driving an automobile on Main Street Winthrop, in an easterly direction toward Winthrop Highlands she observed a bus coming toward her which she described as a "great big, long, wide affair." The bus, which was proceeding at about forty miles an hour, "forced her to turn to the right," and her automobile collided with a "parked car." The plaintiff was coming from Dorchester. The department of public utilities had issued a certificate of public convenience or necessity to the defendant for three routes in Winthrop, one of which included Main Street, ^[1] and this was in effect in February, 1941. "There was another bus line in operation in Winthrop at that time but not on Main Street." According to the defendant's time-table, buses were scheduled to leave Winthrop Highlands for Maverick Square via Main Street at 12:10 A.M., 12:45 A.M., 1:15 A.M., and 2:15 A.M. The running time for this trip at that time of night was thirty minutes.

The direction of a verdict for the defendant was right. The ownership of the bus was a matter of conjecture. While the defendant had the sole franchise for operating a bus line on Main Street, Winthrop this did not preclude private or chartered buses from using this street; the bus in question could very well have been one operated by someone other than the defendant. It was said in Sargent v. Massachusetts Accident Co. 307 Mass. 246, at page 250, that it is "not enough that mathematically the chances somewhat favor a proposition to be proved; for example, the fact that colored...