Bates v. Callahan , 347 Mass. 772 ( 1964 )

Exceptions overruled. Verdicts were returned against three defendants in favor of two plaintiffs who, while painting a service station operated by the defendant Patrick Spennetto (Spennetto) and his brother Abraham, were knocked from ladders by a motor vehicle brought for servicing to the station by the registered owner, the defendant Mrs. Callahan, whose husband, also a defendant, although unable to drive, did, at Abraham’s request, enter the vehicle, where Spennetto had left it, and start the motor. In doing so, he accelerated the motor while the gears were engaged, causing the vehicle to leap forward and strike the ladders. Under the rule stated in Kelly v. Railway Exp. Agency, Inc. 315 Mass. 301, 302, all issues were properly left to the jury. Callahan’s operation of the vehicle, when he was unqualified to do so, could be found a negligent act. Whether Mrs. Callahan was legally responsible for the conduct of her husband became a question of fact by force of G. L. c. 231, § 85A Abraham’s request, complied with by Callahan, that Callahan start the motor, warranted a finding that Callahan was temporarily the agent of Spennetto. Finally, although the plaintiffs were not under contract with Spennetto or in his employ, the jury could find that they were on the premises with permission and for a purpose in which Spennetto had a beneficial interest and, therefore, were business invitees to whom Spennetto and his agents owed the duty of reasonable care. Hart v. M. S. Kelliher Co. 308 Mass. 213, 215. Adams v. George Lawley & Son Corp. 314 Mass. 87, 89-90. Compare Wurm v. Allen Cadillac Co. 301 Mass. 413. It could not be ruled as matter of law that the plaintiffs had assumed the risk or were contributorily negligent. Meehan v. Gordon, 307 Mass. 59, 62-63. Zawacki v. Finn, 307 Mass. 86, 88. The motions for directed verdicts were rightly denied.