Lowe v. Antonelli

Pierce, J. This is an action of tort to recover damages caused, as the plaintiff alleges, by a servant of the defendant running down the plaintiff on Haverhill Street,, a public highway in the city of Lawrence, on the twenty-ninth day of May, 1914. The case was tried in the Superior Court to a jury. The material facts surrounding the accident are as follows: Haverhill Street runs east and west and Lawrence Street north and south. The High School is on the northwest comer and the Common on the southeast. The path across the common starts at the corner and runs diagonally. An ordinance of the city of Lawrence, dealing with the matter of travel in intersecting streets, reads as follows: “ 5. A vehicle in turning to the left into another street shall pass to the right of and beyond the centre of the intersecting street before turning.” The plaintiff walking eastward came down Haverhill Street on her left hand until she came to the northwest corner of Haverhill and Lawrence streets at the High School, and then started to cross Lawrence Street diagonally to the path across the common. The evidence warranted a finding that the plaintiff both looked and listened as she stepped off the sidewalk to cross Lawrence Street and that she neither saw nor heard the automobile which struck her and knocked her down when she was about two yards from the sidewalk. Without resort to the statutory presumption this evidence of due care made an issue for the jury. [240] ■ The evidence in relation to the negligence of the driver of the colliding automobile, one Page, warranted a finding that it was driven from behind the plaintiff along the right hand side of Haverhill Street until it reached the corner of Haverhill and Lawrence streets; that it then turned to the left in a very sharp cut on to Lawrence Street and struck the plaintiff, while so turning, knocking her down; that it then turned to the right, crossed Lawrence Street, and stopped on the left side of Haverhill Street. The facts established show a violation of the quoted ordinance by the driver and harm to the plaintiff proximately resulting from such violation; and consequently presented an issue of fact for the jury. The substantial question presented by the evidence is whether the driver was a servant of the defendant and acting for his master within the scope of his employment when the accident took place. The jury could find that Page was in the general employment of the defendant when the accident occurred from the testimony of the plaintiff “ that at the previous trial of this case the defendant testified that Page worked for him two days before the accident and one day after and that he paid part of Page’s fine,” and in arriving at its conclusion it might give force to the fact that on the day after the accident the defendant went with the driver of the automobile to the house of the plaintiff and while there said that the automobile was not his, “ It belonged to his brother but he employed the chauffeur.” As to whether the “ chauffeur ” was engaged in the business of the defendant when the accident happened, the evidence is uncontradicted and in substance is as follows: The defendant was a mason and contractor; he never owned an automobile. In the latter part of May, 1914, he hired one Rogiero to haul cement from the Boston and Maine Railroad to a shed in the rear of 193 Elm Street. He told Rogiero to get a man to help him. The defendant never saw Page until after Rogiero got Louis Page (the driver) to help him. Page testified that he worked about two days unloading and hauling cement in a wagon just previous to [241] the accident; that on the day of the accident in the morning, he took without leave and against the owner’s refusal of permission so to do a five passenger Buick automobile from the premises of the owner, a brother of the defendant, and drove it to his own house and later upon Haverhill Street until the moment of the accident. There was no evidence that Page ever had been in the employ of the defendant, other than on the days he was hired by Engiero to work hauling cement for the defendant, nor was there any evidence that the automobile was ever used in furtherance of the business or pleasure of the defendant. The fact that the defendant gave bail for Page and paid his fine, has little if any evidentiary value in the determination of the scope of the employment of Page and in particular in determining whether Page was driving the automobile in the interest of the defendant when he ran down the plaintiff. We think the evidence was entirely insufficient to warrant a finding that the defendant owned the automobile, that as such owner he had.authorized Page to use the automobile for his own pleasure or for the benefit of the defendant, or that Page before and when the accident happened was driving the automobile in the interest of the defendant or more directly in the performance of any work which fell to him to do within the scope of his employment. Porcino v. DeStefano, 243 Mass. 398, and cases cited. We think the fourth request of the defendant, “ There is no sufficient evidence which will justify the jury in finding that, at the 'time of the accident, the driver of the automobile was engaged in any business of the defendant,” should have been given. If all the testimony introduced by the defendant were disbelieved by the jury, still, there would be no evidence that Page was driving the automobile in the interest of the defendant at the time of the accident. In accordance with the terms of the report judgment 'is to be entered for the defendant. So ordered.