Puccia v. Sevigne , 258 Mass. 234 ( 1927 )

Crosby, J.

The first action is brought to recover compensation for personal injuries, received by the plaintiff when struck by an automobile owned by the defendant and operated by his chauffeur, one Cappucio. The second is brought by the husband of the plaintiff in the first action to recover consequential damages. The accident occurred on July 7, 1923, at about eleven o’clock in the evening, on Hanover Street, in Boston, at its intersection with Parmenter Street and Richmond Street.

The plaintiff testified that before she started to cross Hanover Street from the northerly side, she looked toward her right and saw an automobile standing on the other side of the street near the corner of Richmond Street; that as she did not see any automobile approaching, she started across the street on the cross walk; that when she had reached the other side and was about two steps from the curbstone, she was thrown down and did not know what happened after-wards. On cross-examination she testified, in substance, that she did not know how far away the automobile that struck her was when she first saw it, but that it was far away from her, and that she knew she had time to cross; that she looked ahead as she crossed the street. Other witnesses testified respecting the circumstances attending the accident. There was evidence that it was a foggy night, and that before the plaintiff was struck the horn on the automobile was not sounded or other signal given as the automobile approached the intersection of the streets.

Upon the conflicting testimony it could not have been ruled that the plaintiff was not in the exercise of due care. G. L. c. 231, § 85. Hennessey v. Taylor, 189 Mass. 583. Beale v. Old Colony Street Railway, 196 Mass. 119. Pawloski v. Hess, 253 Mass. 478.

There was evidence of negligence by the operator of the automobile. Although he testified that his car was not travelling at the rate of more than eight or nine miles an hour at the time of the accident, the jury were not bound to believe that testimony; if it were believed, it was not conclusive upon the question of negligence. If, as they could have found, the driver approached the intersecting streets at a rate of speed greater than was reasonable and proper, or failed to sound the horn or give any signal of his approach, it was a violation of G. L. c. 90, §§ 14, 17, and was evidence of negligence. Patrick v. Deziel, 223 Mass. 505. Coope v. Scannell, 238 Mass. 288. Davicki v. Flanagan, 250 Mass. 379, 381. Pawloski v. Hess, supra. Independently of a violation of the statute, it could have been found that the proximate cause of the plaintiff’s injuries was negligence of the operator.

The question remains, whether there was any evidence warranting a finding that Cappucio at the time of the accident was acting within the scope of his employment. Both he and th'e defendant testified that on the evening in question he was permitted by the defendant to take the car to go to his house in Roxbury. The defendant lived in Winthrop. He admitted that Cappucio was in his general employment as a chauffeur. Interrogatories were propounded by the plaintiff to the defendant. The seventh and eighth and the answers thereto were as follows: “Int. 7. If you answer the interrogatory in the affirmative, kindly state fully and in detail how said Cappucio happened to be operating said automobile on said date. A. Because it was his business to do so. — Int. 8. Was the said Cappucio employed by you on that date? A. Yes.” It could have been found from this evidence that Cappucio was employed by the defendant and was acting within the scope of his employment when the plaintiff was injured. The defendant earnestly argues that the answers elicited by these interrogatories related to the employment of the chauffeur during the day only, and did not refer to his employment at the time of the accident. The answers did not so limit the time of the employment and they could not be so construed as matter of law. It was a question for the jury to determine whether the answers included the time when the plaintiff was injured, and whether Cappucio was then engaged in his employer’s business or was using the car for his own convenience. It may be assumed that the defendant knew, when he answered that the chauffeur was operating the car on that date because it was his business to do so, that the accident on account of wMch this action had been brought against him occurred on the evening of July 7, 1923. If he had intended to make any distinction between the.hours of that day, it could have been found that he would have qualified his answers accordingly. There was evidence that when required the employee occasionally operated the automobile in the evening at the request of the defendant. Upon the answers to the interrogatories and all the other evidence, it could not have been ruled that the chauffeur was not acting within the scope of his employment at the time of the accident. Teague v. Martin, 228 Mass. 458. Conant v. Constantin, 247 Mass. 76.

The trial judge submitted the case to the jury with full and accurate instructions upon all issues involved. It follows that in each case the defendant’s motion for a directed verdict was properly denied.

After the jury retired, they returned and asked that the seventh and eighth interrogatories, and answers thereto, be read to them. The judge complied with their request. Then counsel for the defendant asked that certain portions of the defendant’s testimony also be read; this request was denied. The defendant contends that the reading of the interrogatories and the answers, and the refusal to comply with his request, were prejudicial to the rights of the defendant, and amounted to a charge on the facts. There is no merit in this contention. It was agreed by counsel that the interrogatories and answers should be read, as requested by the jury. The judge was not required in addition to read other testimony of the defendant. It is to be assumed that such testimony was considered by the jury in reaching a verdict. No exception was taken to the refusal by the judge to comply with the defendant’s request, which is a sufficient answer to the contention now made in this connection.

Cappucio, on cross-examination, was asked: “Did you tell them at the relief station that she [the plaintiff] met with an accident?” This question was objected to by the defendant, and was allowed by the judge upon the statement of the plaintiff’s counsel that he intended to show that what the witness stated at the relief station was contradicted by Ms testimony at the trial. His answer was that he did not remember whether he told them that the plaintiff had been struck by Ms car. If it be assumed that tMs testimony did not tend to contradict what he stated at the trial, the rights of the defendant were not prejudiced.

We perceive no error in the conduct of the trial.

Exceptions overruled.