Washburn v. R.f. Owens Co.

• Decision Date: 15 April 1925
• Citation: 252 Mass. 47
• Parties: GEORGE S. WASHBURN v. R.F. OWENS COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

252 Mass. 47

GEORGE S. WASHBURN v. R.F. OWENS COMPANY.

Supreme Judicial Court of Massachusetts, Plymouth.

April 15, 1925

November 20, 1924.

Present: RUGG, C.

J., BRALEY, PIERCE CARROLL, & WAIT, JJ.

Negligence, Motor vehicle, In use of highway, Res ipsa loquitur. Evidence Competency, Of failure to sound horn, Of agency Interrogatories, Presumptions and burden of proof. Agency Scope of employment. Practice, Civil, Exceptions Interrogatories, Charge to jury.

An exception to the admission, at the trial of an action for personal injuries, of evidence of the actual profits of the plaintiff from his business in the six months before and in the six months after the accident, was not sustained although the admission was erroneous, where it appeared that the judge in his charge corrected his error and told the jury to disregard the evidence.

At the trial of an action for personal injuries and property damage resulting from an alleged collision from the rear of a motor truck of the defendant with a closed market wagon of the plaintiff, there was evidence tending to show that the curtains of the wagon came to the rear of the driver's seat on the left hand side and to the front of that seat on the right hand side; that the road was straight and level and over twenty feet wide; that there was no house near; that the plaintiff was on the extreme right hand side of the road with the reins in both hands and "jogging" at about six or seven miles per hour when something struck the wagon, which he afterwards learned was the defendant's truck. The only evidence on the question whether the defendant sounded a horn was testimony of the plaintiff that he heard no sound of a horn. Held, that, in the circumstances, it was proper for the judge to refuse to rule that there was no evidence warranting a finding "that a horn was not sounded by the driver of the defendant's truck."

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 establish that the driver then was acting within the scope of his employment.

At the trial of the action above described, the defendant admitted that his truck struck the plaintiff's wagon. In answer to interrogatories, the defendant stated that the truck was carrying a load of about two tons and that "A truck belonging to the defendant and driven by an agent collided with a wagon" which answered the description of the plaintiff's wagon. There was no other evidence bearing on the question of the employment of the driver by the defendant. Held, that a ruling asked for by the defendant, "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," should have been given and that a verdict for the defendant should have been ordered.

The use of the word "agent" in the answer to the interrogatory above described was not an admission that at the time of the collision the driver was acting within the scope of his employment.

Besides the evidence above described, there was testimony by the plaintiff that when his wagon was struck his horse ran from the road into woods; that he was thrown onto the horse and grasped the harness; that he looked to the left and saw the defendant's truck; that he saw no other automobile pass; and that the driver of the truck, apparently extremely nervous, came to him and helped him. In answer to interrogatories, the defendant further stated that he was caused to run into the plaintiff's wagon by another passing truck coming against his front wheel. The judge refused to rule that "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." Held, that the refusal was proper.

TORT for personal injuries and property damage suffered when a wagon of the plaintiff was run into from behind by a motor truck of the defendant alleged to have been driven by an employee of the defendant. Writ dated January 2, 1923.

In the Superior Court, the action was tried before Macleod, J. Material evidence and rulings asked for by the defendant are described in the opinion. At the close of the evidence, the defendant moved that a verdict be ordered in its favor. The motion was denied. The judge charged the jury on the question, whether a horn was sounded by the defendant, as follows:

"The only evidence in the matter [whether the horn was sounded] is the fact that the plaintiff testified that he did not hear any horn. There is no affirmative testimony on the part of the plaintiff that the operator blew his horn. There is the statement of the plaintiff that he did not hear any horn and that statement is not contradicted. Now, does that in itself, that statement that he did not hear any horn, constitute anything in the way of evidence in this case, supposing you should find there was any obligation on the part of the operator to blow his horn? Now that in turn depends upon circumstances. It may or it may not be on the evidence of this case, on the circumstances in this case, some evidence that the horn was not actually blown. There is no evidence in this case one way or the other except that the plaintiff was proceeding along the road driving his cart, for all it appears, in a normal way and manner, and that he did not hear the car. You have the cart described, the cart in which the plaintiff was riding. It was described, the location of the seats and what curtains were up and what curtains were down, and other things of that kind. And the plaintiff says that he did not hear the car. He did not hear the other car approach. Now, if this were a case where there were any affirmative evidence that the plaintiff was deaf or that he was asleep, or that he was engaged in conversation with some other persons in the cart at the time so as to indicate that he was not paying attention to whether a horn was blown or not, then the fact he did not hear the horn would be no evidence at all one way or the other. On the other hand, if you had a case where the plaintiff had affirmatively testified that he was attentive, on the look out for horns or signals that might be sounded by an automobile or automobiles, then the evidence would be clearly admissible to show as prima facie evidence that the horn was not, in fact, blown.

"This is a case which falls between the decided cases, as I understand it because there is no evidence one way or the other. `A witness may be in any conceivable attitude of attention or inattention which will give his evidence value or leave it with little or no weight, but where his position is such that the sound would have been likely to attract his attention if the bell had been rung or the whistle or horn sounded, his failure to hear it was some evidence that the horn was not in fact sounded.' Now, as near as I can understand it that is the principle. Where there is no affirmative, direct testimony that he was paying attention the test is, was his position at the time, riding in the car with curtains up and practically around the cart, riding in a horse drawn vehicle which is a very much less flexible instrument of locomotion than an automobile so far as getting promptly out of the way is concerned, as to whether riding in that kind of a vehicle it was likely or not that the plaintiff with the regard of his own safety that would be expected in a case of a man acting in a normal fashion would be sufficiently alert to hear an automobile horn if it were sounded.

"If you find that the circumstances disclose in this case that his situation was such that he might be expected from the situation that he was in at the time to have heard this horn if it had been sounded, then the fact that he did not hear the horn sounded would be some evidence, sufficient evidence in this case as far as that aspect of it is concerned and on that issue, to say that the horn was not in fact sounded because there is no contradictory testimony.

"And if you find that under the circumstances disclosed there was an obligation on the part of the operator of this car as a reasonable person to have sounded his horn at the time, his failing to sound the horn would be some evidence of negligence in this case. There, I think, for the present I will leave the matter so far as the question of...