Mathewson v. Edison Electric Illuminating Co. of Boston , 232 Mass. 576 ( 1919 )

Crosby, J.

These are two actions to recover for personal injuries received by the plaintiffs by reason of a collision of a motorcycle, upon which they were riding, with an automobile of the defendant driven by one Crossman who was in its general employ but who, it contends, was not then acting within the scope of his employment. The accident occurred on a Sunday morning at the junction of Pleasant Street and Concord Avenue in Belmont. There was evidence tending to show that the plaintiffs were in the exercise of due care and that Crossman was careless.

On the morning of the accident Grossman was directed by the defendant to take an automobile to Woburn, there leave it, and to bring another back to its Massachusetts Avenue garage. Returning there were two routes to the defendant’s garage which could have been taken from Arlington: one, by way of Massachusetts Avenue to Harvard Square in Cambridge, the other, by way of Pleasant Street and Concord Avenue in Belmont and thence along Concord Avenue to Harvard Square. The distance from Arlington to Harvard Squaré by Massachusetts Avenue was three and six tenths miles, while the distance by Pleasant Street and Concord Avenue (the route taken by Crossman) was five and five tenths miles. There was evidence that there were two shorter ways from Arlington to Harvard Square, — one of which passed over two railroad crossings at grade and a portion of the road was rough at the time of the accident, and the other (over Leonard Street) was so narrow that there was barely room for a street car and automobile to pass; that while the return trip by way of Massachusetts Avenue was shorter in point of distance, yet on account of the traffic on the street cars the quicker route was by way of Pleasant Street, where there were no car tracks, and Concord Avenue, where the tracks were on a reservation outside the travelled part of the way; and that a very much larger number of cars was operated on Massachusetts Avenue than on Concord Avenue. Crossman was familiar with'the Massachusetts Avenue route and had never been over Pleasant Street before, although knowing a part of Concord Avenue and that it ran to Harvard Square. There is no evidence that he received any instructions as to the way to be taken. He testified that he wanted to get home as soon as possible and intended to return by the nearest and best way; that he thought the way he took was a good way to go; that he did not know at that time that he was going “so far out of his way,” and that he had heard that Concord Avenue was a good way to go, — that there were no car tracks and not much traffic. It also appeared that on the return trip he invited to ride an acquaintance named Norris, who was intending to go-to Boston and who was in the automobile from Woburn up to the time of the accident.

The defendant offered in evidence the following order or rule made by the company: “Any employee, while operating our vehicles found off the' course on which his duties would naturally take him, or indulging in any practices savoring on ‘joy riding/ will be summarily dismissed.” It might have been found that the course taken by the driver and his invitation to Norris did not violate the rule. Hence its legal effect need not be determined.

In deciding whether, in view of. the longer way which the driver took, he was acting for a purpose of his own or was still engaged in his master’s work, his intention is important. Deviation by a servant from the regular course, or travelling by a longer route than is required to reach his destination in the performance of his master’s business, is not conclusive evidence that he is not then acting within the scope of his employment.

It is a matter of common knowledge that motor vehicles can be run over smooth ways where there is little or no street traffic much more easily, safely and quickly than over rough roads, or where their progress is delayed by the presence of other vehicles, or by the receiving or discharging of passengers from street cars. These are matters proper to be considered in determining whether the deviation from a regular or more direct route is .an abandonment of the master’s business. An automobile is so different from other means of transportation that what might be a material deviation from the shortest route in travelling with a horse and wagon might be justifiable in an automobile. The jury may have found that the driver, in adopting the course he took, under all the circumstances chose the quickest and best way to reach his destination, and that by so returning he had not abandoned his master’s business but was acting in the course of his employment. Verdicts for the defendant could not properly have been directed. Hayes v. Wilkins, 194 Mass. 223. McKeever v. Ratcliffe, 218 Mass. 17. Donahue v. Vorenberg, 227 Mass. 1. Ritchie v. Waller, 63 Conn. 155. The facts in the case at bar plainly distinguish it from McCarthy v. Timmins, 178 Mass. 378, Fleischner v. Durgin, 207 Mass. 435, Mitchell v. Crassweller, 13 C. B. 237, Storey v. Ashton, L. B.. 4 Q. B. 476.

The exceptions to the exclusion of evidence to the effect that the defendant’s claim agent received information from Cross-man that Norris was with him at the time of the accident and that after his dismissal he told a claim' agent of the defendant that Norris lived on Concord Avenue, cannot be sustained. There is nothing to indicate that the witness concealed the fact that 'Norris was with him. He previously had stated that fact to another claim agent of the defendant.

There was no error in the admission of testimony of Cross-man as to where he intended to go when he started down Pleasant Street. He already had testified to the same effect without objection. His intention was material. Donahue v. Vorenberg, supra. Carriere v. Merrick Lumber Co. 203 Mass. 322.

The defendant’s second and fourth requests for rulings were properly refused except in so far as covered by the charge; the ninth and tenth were rightly denied; the eleventh, twelfth and thirteenth, so far as pertinent and sound, were covered by the instructions; the eighteenth was properly refused for the reasons before stated. The two exceptions to the charge relate to correct instructions given upon the issues presented.

Exceptions overruled.