Washburn v. R.F. Owens Co.

• Citation: 252 Mass. 47,147 N.E. 564
• Parties: WASHBURN v. R. F. OWENS CO.
• Decision Date: 16 April 1925
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

252 Mass. 47

147 N.E. 564

WASHBURN

v.R. F. OWENS CO.

Supreme Judicial Court of Massachusetts, Plymouth.

April 16, 1925.

Exceptions from Superior Court, Plymouth County; E. J. Macleod, Judge.

Action of tort by George S. Washburn against the R. F. Owens Company to recover for damages alleged to have been caused when defendant's truck collided with plaintiff's wagon. Defendant's request for directed verdict was refused, and it excepts. Exceptions sustained.

C. G. Willard and C. C. Reed, both of Brockton, for plaintiff.

A. E. Yont, of Boston, for defendant.

WAIT, J.

This case is before us upon exceptions to the admission of evidence, to the refusal of the judge to direct a verdict for the defendant, to his refusal to give certain instructions requested by the defendant, and to certain parts of the charge.

[1] The admission of the evidence of the actual profits of the plaintiff from his business in the six months before and in the six months after the accident, although erroneous, Mahoney v. Boston Elevated Railway, 221 Mass. 116, 108 N. E. 1033, did not prejudice the defendant because the judge in his charge corrected his error and told the jury to disregard the evidence. This exception must be overruled.

About 4 o'clock in the afternoon of October 20, 1922, the plaintiff was driving a closed market wagon along the highway between Brockton and West Bridgewater. The road was straight and practically level for 600 feet in either direction. Its surface was a hard macadam 21 1/2 feet wide with a shoulder of gravel 4 feet wide on either side approximately level with the hard surface. There were no houses within three or four hundred feet. The plaintiff was seated on the right-hand side of the wagon. The curtain on his left came forward as far as the back of the seat and that on his right as far as the front of the seat. He drove at the extreme right of the macadam surface with his right wheels about a foot from the right-hand side of the road. He was holding the reins in both hands and ‘jogging’ some six or seven miles per hour. Something struck the wagon. The horse hesitated an instant and then ran, turning to the right into the woods, and throwing the plaintiff to the ground after going some 30 or 40 feet. The plaintiff was thrown forward onto the horse by the shock of the collision and to hold himself grasped a part of the harness. As he fell he glanced to the left and saw a truck passing the front of the wagon at a speed which he estimated at about 25 miles per hour and which he testified was slow under the conditions at the time. He saw no other automobile passing. He heard no sound of a horn. The driver of the truck, who seemed extremely nervous, came and assisted him. From the defendant's answers to interrogatories, put in evidence by the plaintiff, it appeared that the truck was going in the same direction as the wagon, at a speed not over 12 miles per hour, with a load weighing about two tons, and struck the left hind wheel of the wagon; that there was another truck on the road which also was going in the same direction; that this Reo truck came against the left front wheel of the defendant's truck and caused it to strike the plaintiff's wagon. The defendant did not know the owner, the driver or the number of this Reo truck, but thought it bore a Rhode Island registry. After striking the wagon the defendant's truck stopped as soon as possible, going not more than 8 feet beyond the point of the collision.

There was no other material evidence to show what took place; and the only evidence to connect the defendant with the accident was its answers to the interrogatories. Interrogatory 1 was as follows:

‘Did a motor truck belonging to the defendant, and driven by an agent or servant of the defendant, collide with or strike from the rear, a wagon driven by George L. Washburn on South Main street, Brockton, Massachusetts, on or about October 20, 1922?’

The answer was:

‘A truck belonging to the defendant and driven by an agent collided with a wagon on South Main street, between Bridgewater and Brockton, October 20.’

The only evidence offered by the defendant was by a witness who, by consent, while the plaintiff was putting in its case, testified in regard to certain number plates. At the close of the plaintiff's case, the defendant moved for a directed verdict, and when this was refused asked instructions:

‘(1) That the plaintiff is not entitled to recover.

‘(3) The fact that the truck belonging to the defendant's company struck the plaintiff's team is not sufficient evidence to justify a verdict for the plaintiff, without further evidence that the accident was caused by a negligent act on the part of the defendant, its agent or servant. The plaintiff must show, by some positive evidence, that a negligent act on the part of the defendant's agent or servant contributed to the cause of the accident, and this may not be inferred without some positive evidence.

‘(4) There is no evidence that the accident was caused through the negligence of the agent or servant of the defendant, acting within the scope of his employment. (7) There is no evidence on which it may be found that a horn was not sounded by the driver of the defendant's truck.’

We will deal with these in inverse order.

Although the question is close, it cannot be held that the judge was wrong in refusing to give the seventh request. The only testimony was the plaintiff's statement that he did not hear a horn. ‘Merely negative testimony of that nature without circumstances tending to give it affirmative force is of no value.’ Koch v. Lynch, 247 Mass. 459, 462, 141 N. E. 677; but there was here a full description of the circumstances bearing upon the likelihood of the plaintiff's hearing a horn had one been sounded. We think the defendant was sufficiently protected by the instruction actually given.

[3] The fourth request should have been given. The law of Massachusetts is well settled that proof that the driver of a motor vehicle was in the general employ of the defendant at the moment of an accident, and that the defendant was owner of the vehicle, is not enough to prove that the driver was then...