Thomas v. Fritz

• Decision Date: 01 November 1945
• Citation: 63 N.E.2d 357,318 Mass. 622
• Parties: THOMAS v. FRITZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

318 Mass. 622

63 N.E.2d 357

THOMAS

v.FRITZ.

Supreme Judicial Court of Massachusetts, Franklin.

Nov. 1, 1945.

Exceptions from Superior Court, Franklin County; Leary, Judge.

Action by John H. Thomas against Russell F. Fritz to recover for personal injuries. A verdict was directed for defendant on the first count, and a verdict was ordered to be entered for defendant on third count after jury had returned a verdict for plaintiff which was taken with leave reserved, and plaintiff brings exceptions.

Exceptions overruled.

Before FIELD, C. J., and QUA, DOLAN, WILKINS, and SPALDING, JJ.

C. Fairhurst and S. Blassberg, both of Greenfield, for plaintiff.

J. T. Bartlett and M. J. Levy, both of Greefield, for defendant.

SPALDING, Justice.

The judge directed a verdict for the defendant on the first count which was based on ordinary negligence, and submitted the case to the jury on the third count which alleged gross negligence.¹ The jury returned a verdict for the plaintiff which was taken with leave reserved, and thereafter the judge ordered a verdict to be entered for the defendant. To this action and to the direction of a verdict on the first count the plaintiff excepted.

The following facts could have been found: The plaintiff and the defendant were employees of George H. Reed & Co., Inc. (hereinafter called the company), which was insured for workmen's compensation under the provisions of G. L. (Ter.Ed.) c. 152, and the plaintiff had not reserved his common law rights under § 24 thereof. It was the duty of the defendant to transport the employees of the company (including the plaintiff) to and from work each day in a company truck ‘as a part of their arrangement of employment.’ On February 19, 1943, the day of the accident, the plaintiff, while waiting in front of his home to be transported to work by the defendant, observed that one Connors was having difficulty in starting his automobile. Connors asked the plaintiff if he thought the driver of the company's truck ‘would give him a little push when he arrived,’ and the plaintiff said that he would ask him. In a few minutes the defendant arrived driving a company truck, and the plaintiff, after telling him of Connors's difficulties, asked him if he would ‘give him a little push.’ The defendant made no reply but put his truck into position behind Connors's automobile. Tuttle, a fellow employee of the plaintiff and the defendant and a passenger in the truck, got out of the truck and directed the defendant ‘up against the other car.’ Tuttle, thinking that the bumpers of the two vehicles ‘didn't mesh very well,’ stood on the left side of the front bumper of the truck to hold it down, and the plaintiff, at Tuttle's suggestion, stood on the opposite side of the bumper grasping the small radiator cap with one hand and the headlight with the other. The truck, driven by the defendant, then pushed the Connors automobile to the farther end of a railroad bridge about two hundred fifty feet away at which point it left the truck and continued on its way. The road up to the bridge was slightly up grade. Beginning at the farther end of the bridge, which was flat, the road was down grade. ‘There was ice on the road, but it was well sanded.’ While pushing the Connors automobile the defendant gradually increased the speed of the truck so that when it reached the bridge it was going at about twenty-five miles per hour. At this point the defendant, after giving the Connors automobile ‘quite a push,’ ‘stopped very quickly’ without any warning, causing Tuttle and the plaintiff to be thrown forward approximately twenty-five feet. As a result of being so thrown the plaintiff sustained injuries.

1. The judge rightly directed a verdict for the defendant on the count for ordinary negligence. The plaintiff argues that his status on the truck at the time he was injured could be found to be that of a passenger for hire and that he could recover on proof of ordinary negligence. To acquire this status the plaintiff had the burden of proving that at the time that the accident happened he was ‘conferring a benefit in the performance of something in which the defendant had an interest.’ Hall v. Smith, 283 Mass. 166, 168, 185 N.E. 850, 851;Woods v. Woods, 295 Mass. 238, 242, 243, 3 N.E.2d 837;Epstein v. Simco Trading Co., Inc., 297 Mass. 282, 284, 8 N.E.2d 767;Donovan v. Johnson, 301 Mass. 12, 14, 16 N.E.2d 62. The benefit need not be of a pecuniary nature. Lyttle v. Monto, 248 Mass. 340, 142 N.E. 795;Semons v. Towne, 285 Mass. 96, 100, 188 N.E. 605. Nor need it arise out of a contract. Hall v. Smith, 283 Mass. 166, 169, 185 N.E. 850. The plaintiff contends that he was conferring a benefit on the defendant by standing on the bumper with Tuttle in order to hold it down. Much reliance is placed on the statement made by the defendant, while testifying, that he ‘knew that there was a possibility that the two bumpers might override, but * * * [he] trusted both of the men to protect * * * [him] in that respect.’ But we are of the opinion that a reasonable interpretation of the evidence compels the conclusion that the plaintiff while standing on the bumper conferred no ‘benefit in the performance of something in which the defendant had an interest.’ See Woods v. Woods, 295 Mass. 238, 3 N.E.2d 837. The case of Semons v. Towne, 285...