Weiner v. Mairs

• Decision Date: 26 November 1919
• Citation: 125 N.E. 149,234 Mass. 156
• Parties: WEINER v. MAIRS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

234 Mass. 156

125 N.E. 149

WEINER

v.MAIRS.

Supreme Judicial Court of Massachusetts, Hampden.

Nov. 26, 1919.

Report from Superior Court, Hampden County; Philip J. O'Connell, Judge.

Action of tort to recover for damage to plaintiff's automobile, in collision with defendant's, by Robert Weiner against J. Kelso Mairs, resulting in a directed verdict for defendant. On report to the Supreme Judicial Court. Judgment ordered for defendant on the verdict.

The report of the judge of the superior court reads as follows:

This is an action of tort, in which the plaintiff seeks to recover from the defendant compensation for damage to an automobile, the property of the plaintiff, in a collision between an automobile driven by the plaintiff and an automobile owned by the defendant, and operated by his son, D. Kelso Mairs, on State street, at Andrew street, Springfield.

The declaration alleged that the automobile of the defendant was so driven by him, his agents and servants, as to cause the damage and injury to the plaintiff's automobile.

The material testimony was as follows:

The defendant testified that he was, on the date of the accident, the owner of the automobile in question, and that his son, David Kelso Mairs, a student at the Wilbraham Academy, figured in the accident; that the defendant came to Wilbraham in the automobile, which was driven by a chauffeur, on the day of the collision, to attend a celebration of the school to be held the following day; that they left Wilbraham in his automobile for Springfield; that the defendant left the car at Clinton Hall, a hotel in Springfield, and then gave the car to his son, and that the car remained at Clinton Hall until 4:30 that afternoon, when he gave the car to his son with instructionsto park the car for the night in the Wilbraham Academy garage (which is in Wilbraham, Mass.), and to be sure and get home in time for dinner, and not to take it out with the boys that night; that the boy would have arrived at Wilbraham at 5 o'clock; and that he did not know until after the accident that the car was out that night about 9 or half past 9 o'clock.

David Kelso Mairs testified that at the time of the accident he was a student at Wilbraham Academy; that there was a celebration at the academy at the time; that his father came to Wilbraham on that day; that he took his father into Springfield in the machine; that he then drove the machine back to Wilbraham; that he arrived at Wilbraham Academy about 4:15; that he then put it up in the Wilbraham Academy garage; that he was to have dinner shortly, and he put it up to go upstairs to change his clothes; that those were his father's instructions; he then went in to get ready for supper, and he had supper at 6, or a quarter of, that evening; that he attended some exercises of the school until 7:30; he then took some fellows out for a ride about 8 o'clock; that his father did not know he was taking out the car after 8 o'clock; that among those that he took out were Edward B. Hopkins and Arnold C. Barker; that they then went to the outskirts of Springfield; that at about 9 o'clock they were on State street, near Andrew street; that it was a very rainy and slippery night; that he was about to turn around to go back to Wilbraham, and had made the curve (indicating on a diagram) to return, and came to a dead stop, after which the collision occurred; that the boys were still in the car; that he had often taken the family out for a ride, and had driven the car very often; that it was a block before he came to Andrew street when he decided to turn at Andrew street.

Edward B. Hopkins testified that he was a student at Wilbraham Academy, and was acquainted with David Kelso Mairs, son of the defendant; that he was with David and the other fellows on the night of the accident; that at or about 9 o'clock in the...