Littlefield v. Gilman , 207 Mass. 539 ( 1911 )

Rugg, J.

This is an action of tort to recover damages for the conscious suffering of one William H. Littlefield which resulted from the collision of an automobile driven by the defendant with that operated by one Murphy. The deceased was riding with Murphy as his guest, and there was evidence from which it might have been found that the injuries were caused by the concurrent negligence of the defendant and Murphy. The latter was employed as a repair man at a garage, and although not licensed as a chauffeur was driving the automobile on the business of his employer. The only exception not now waived was to the refusal of the trial judge to rule that “ If the jury find that the driver was negligent in driving the automobile in which Littlefield was riding, and such negligence was a contributory cause of the accident, then the plaintiff is bound by such negligence and cannot recover.” This request is directly contrary to the law as laid down in Shultz v. Old Colony Street Railway, 193 Mass. 309, and the several cases following it to the effect that the negligence of the driver of a vehicle is not ordinarily to be imputed to one riding merely as guest, who is himself in the exercise of due care. The instructions given were clear and ample in accordance with this principle.

It is now argued in support of the exception that because St. 1903, c. 473, §§ 4,5, required every driver for hire of an automobile to be licensed and to display a distinguishing number or mark while acting as such driver, and as Murphy had no such license, the deceased must be held as matter of law to have been negligent, and reliance is placed on Dudley v. Northampton Street Railway, 202 Mass. 443, and Feeley v. Melrose, 205 Mass. 329. This point was not called to the attention of the trial judge nor was it within the scope of the request presented by the defendant. The only question it fairly opened to consideration was the doctrine of imputed negligence. As to this subject the request was properly refused and accurate instructions were given.

Exceptions overruled.