Roach v. Hinchcliff

De Courcy, J. These are two actions of tort under St. 1907, c. 375, to recover for the death of Harry Evans, the plaintiff’s intestate. At the time of the accident Evans was walking on the easterly side of Columbus Avenue beyond Roxbury Crossing, when an automobile driven by the defendant Hinchcliff ran upon the sidewalk behind him and struck him with such force that his death resulted without conscious suffering. That he was in the exercise of due care is not disputed. 1. Considering first the exceptions in the action against the individual defendant, we are of opinion that the issue of his negligence was for the jury. There was evidence that the street was wide, straight, level and dry; no other vehicles were in the highway, and it was a clear morning. As to the speed of the automo [270] bile there was conflicting testimony, but one witness placed it at eighteen miles and another as high as twenty-five miles an hour; and it could be found that after going upon the sidewalk the car ran a distance of thirty or forty feet, with no diminution of speed, before it struck the deceased. There was some trouble with the engine that caused it to "skip” when running at low speed, but this did not interfere with the operation of the brake or of the steering gear; and the jury could find that if the car had been under proper control it could have been stopped after the tires exploded and before the deceased was reached. In fact they well might find that it was due in whole or in part to excessive speed that the automobile “skidded” against the curbstone and caused the tires to burst and the car to leave the roadway. St. 1909, c. 534, § 16, which the presiding judge read to the jury, had no application to the facts in evidence. Nevertheless the defendants were not harmed thereby, as the law set forth in the portion of the statute to which attention was called did not differ from the common law as to reasonable and proper speed, “having regard to traffic and the use of the way and the safety of the public.” What we have said disposes of the first and second requests for instructions. The twelfth request was given. The others properly were refused, as the defendant sought thereby to select a part of the evidence and to obtain a ruling upon the effect of such part when separated from its context. The charge adequately covered the subject matter. Commonwealth v. Adams, 186 Mass. 101. 2. The only question involved in the action against the Winton Motor Carriage Company in addition to those already considered is whether Hinchcliff, who was its New England manager, was acting in the course of his duties as such, manager at the time of the accident. This also was for the jury upon the evidence. He had sold this automobile to Brownell about a year before, and in the meantime had had possession of it occasionally for testing and for minor repairs; and the company’s garage in Boston was used by Brownell for its storage. One of the ordinary duties of Hinchcliff was the testing of cars of the Winton Company that had been sold to customers. On the morning of the accident Brownell had trouble in operating the engine at low speed and he asked Hinchcliff to get into the automobile and drive it from Sharon to Boston, [271] for the purpose of finding out the cause of the trouble and of making the necessary repairs in time to enable him to use it later in the day; and Brownell expected to pay whatever charge should be made by the Winton Company. Hinchcliff drove and had full charge of the automobile from the time that he entered it until the accident occurred. Under this state of facts, clearly the judge could not give the first or second requests for instructions. The third request was waived, as there was no claim for conscious suffering. As to the remaining ones, it is enough to say that the judge gave all those to which the defendant company was entitled. In each case the entry must be Exceptions overruled.