Walker v. Lloyd

• Decision Date: 28 October 1936
• Citation: 295 Mass. 507,4 N.E.2d 306
• Parties: WALKER v. LLOYD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

295 Mass. 507

4 N.E.2d 306

WALKER v. LLOYD.

Supreme Judicial Court of Massachusetts, Franklin.

October 28, 1936

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

Action of tort by John T. Walker, Jr., by his next friend, against William Lloyd. There was a verdict for plaintiff in the sum of $2,700, and defendant brings exceptions.

Exceptions sustained.

C. E Rowe, of Athol, for plaintiff.

C Fairhurst, of Greenfield, for defendant.

PIERCE, Justice.

This is an action of tort to recover damages for personal injuries sustained by the plaintiff, who is a minor suing by his next friend, arising out of an automobile accident which occurred on November 30, 1933, at about 1:45 a. m. on Main street in Brattleboro, Vermont. The plaintiff and defendant at the time of the accident were residents of Orange, Massachusetts. The defendant was the owner of the automobile but was not a licensed operator. The plaintiff was a licensed operator. The plaintiff's declaration contained two counts, the first for gross negligence, which was waived during the trial; the second was for ordinary negligence. The answer was a general denial and an allegation of contributory negligence. The defendant's motion for a directed verdict was denied by the judge and the defendant duly excepted. The jury found for the plaintiff on the second count and assessed damages. The case is before this court on the defendant's exception to the judge's refusal to direct a verdict for the defendant.

The evidence most favorable to the plaintiff would warrant the jury in finding the following facts: The plaintiff had been out with the defendant before the accident letting the defendant drive on the plaintiff's license. On November 30, 1933, the defendant called the plaintiff by telephone and asked him if he would go up to Brattleboro, Vermont, with him while thd defendant played at a dance, adding that he would like to have the plaintiff take tickets. No mention was made to the plaintiff that he was to be paid for going on the trip or for taking tickets. There was no discussion as to who was going to drive. The defendant got in behind the wheel and drove on the plaintiff's license. The plaintiff sat beside him on the front seat with one Cross. The plaintiff took tickets both upstairs and downstairs at the dance hall in Brattleboro. At about 1 a. m. the defendant, the plaintiff and two friends, Cross and Anderson started back to Orange. The defendant was driving, with the plaintiff beside him and Anderson beside the plaintiff on the front seat; Cross sat in the rear with the musical instruments. It was raining as the defendant's automobile started down the main street in Brattleboro. As the automobile got into high speed the plaintiff spoke to the defendant telling him ‘ to be careful in there on that Main Street.’ The automobile proceeded at about twenty-five miles an hour in the center of the street toward an intersection of streets one hundred feet away. When it was about eighteen feet away from the intersection the plaintiff observed that the defendant was heading his automobile toward a lighted beacon at the intersection of streets, and hollered to him to ‘ look out.’ Continuing at the same speed the defendant swerved his automobile but it struck the beacon, throwing the plaintiff forward and causing his head to strike the windshield which broke into pieces inflicting cuts on the plaintiff's forehead and nose. The beacon consisted of a cement base approximately two feet by two feet on which was a standard six to eight feet in height with a constant light on top.

The defendant testified in part that he was nineteen years old, and a musician; that he led an orchestra which was composed of boys who lived around Athol and Orange; that he owned the automobile in question; that it was registered in his name; that he had no license; that he had a problem of how to convey the band to places where they had engagements without having a license to operate his automobile; that he knew the plaintiff and knew that he had a license, and ‘ asked him to come along on these trips at some time previous to the accident so * * * [the defendant] could operate on * * * [the plaintiff's] license and have the benefit of his license’ ; that ‘ The extent of the payment mostly was that * * * [the plaintiff] enjoyed dancing, and * * * [the defendant] got him into the dances of course’ ; and ‘ that at this time there was a question of payment’ but ‘ So far as * * * [the defendant knew] he [the plaintiff] received not one cent in pocket * * * no compensation of any sort’ for making the trip. He further testified that he had arranged with one Kirk, when he was figuring out the expenses of the dance, that they would pay the plaintiff one dollar and pay Cross one dollar for taking tickets. The defendant also testified: ‘ It was just shifting into high and I just got one glimpse of it before I could do anything, I don't know just what I did do, I hit it the same instant * * * I didn't see the light on the dummy at any time before I hit it. * * * After the accident when I looked it over I said the light on the dummy gave the appearance of being suspended from above and I had that impression and was trying to go under that light but did not see it before the accident.’

The cause of...