Bishop v. Pastorelli , 240 Mass. 104 ( 1921 )

Rugg, C. J.

This is an action of tort wherein the plaintiff, a pedestrian upon the highway, seeks to recover compensation for bodily injuries sustained by her, as alleged in her declaration, by reason of the negligence of the defendant in driving an automobile owned by him against and upon her.

The record discloses nothing whatever to indicate that the automobile, which struck the plaintiff, was owned or driven by .the defendant or by an agent of the defendant acting within the ¡scope of his authority. No evidence was offered by the defendant. He rested at the close of the plaintiff’s case. It is stated in the bill of exceptions that "at no time in the trial was the defendant pointed out or identified in any way by any witness or by counsel or by the court or by anybody else in the presence of the jury.” The number of the automobile was not shown. There was no evidence that it was registered in the name of the defendant or was owned or operated by him. A police officer, who did not see the accident nor any part of it and who arrived at the place where it occurred after the plaintiff had been carried into a building, testified: "After sending Miss Bishop to the hospital I took Mr. Pastorelli down to the station.” Another witness testified that he pointed out on the street to this police officer the place where the accident happened, where the automobile stopped, and some marks on the street. He then was asked: “Now, was Mr. Pastorelli around anywhere at that time?” and answered: “He was there when Mr. Meade [the police officer] was there, and I showed him the place and he said that was just about the spot. Q. That’s what Mr. Pastorelli said? A. Yes sir.” There is nothing more than this to show that the “Mr. Pastorelli” thus referred to was the defendant. Whether this would be enough to show identity need not be decided. Ayers v. Ratshesky, 213 Mass. 589. However that may be, no discussion is necessary to demonstrate that this constitutes no evidence that the defendant John V. Pastorelli owned the automobile whereby the plaintiff was injured, or was driving it himself or was authorizing any servant of his to be driving it at the time of the accident. Marsal v. Hickey, 225 Mass. 170. Phillips v. Gookin, 231 Mass. 250. Melchionda v. American Locomotive Co. 229 Mass. 202. O’Rourke v. A-G Co. Inc. 232 Mass. 129. Gardner v. Farnum, 230 Mass. 193. Teague v. Martin, 228 Mass. 458. Canavan v. Giblin, 232 Mass. 297.

Although the plaintiff might have asked leave to reopen the case for the purpose of offering evidence respecting this point, yet we are not convinced upon the record that this is a case where judgment ought to be ordered for the defendant under G. L. c. 231, § 122.

No inference can be drawn against the defendant for failure to testify, because he was under no obligation to produce evidence until a case adversely affecting his interests had been shown by the plaintiff. Howe v. Howe, 199 Mass. 598, 603.

It could not have been ruled as matter of law that the burden of proving contributory negligence of the plaintiff, now resting on the defendant, was sustained. The plaintiff was hurrying across the street for the purpose of boarding a waiting street car. According to her testimony she paused on the curbing an instant to look for approaching automobiles and, seeing none, went on her way. Without narrating the evidence at length, it is enough to say that this aspect of the case presented a question of fact for the consideration of the jury. Chaplin v. Brookline Taxi Co. 230 Mass. 155. Lynch v. Fisk Rubber Co. 209 Mass. 16. Rogers v. Phillips, 206 Mass. 308. Rasmussen v. Whipple, 211 Mass. 546. Shea v. Boston Elevated Railway, 217 Mass. 163. Buoniconti v. Lee, 234 Mass. 73. Kaminski v. Fournier, 235 Mass. 51. G. L. c. 231, § 85.

The question of the negligence of the driver of the automobile; is close on this record, but need not now be decided since the evidence may be different at a new trial.

Exceptions sustained.