Phillips v. Gookin

231 Mass. 250

Opinion

By the Court.

This is an action to recover compensation for personal injuries received by the plaintiff from being struck by an automobile. The testimony in the case was to the effect that the defendant, being the owner, had let the use of the automobile to one Hayden, who was driving and who was not then and never had been a servant of the defendant. If this testimony was believed, the defendant was not answerable for. the wrong of the driver, Herlihy v. Smith, 116 Mass. 265; if disbelieved, there was nothing to fasten liability on the defendant. Mere disbelief of testimony is not the equivalent of evidence to the contrary. Wakefield v. American Surety Co. of New York, 209 Mass. 173,177.

If this testimony was discredited, the only relevant fact left is that the defendant owned the automobile. That alone is not sufficient in this Commonwealth (however it may be elsewhere, see Potts v. Pardee, 220 N. Y. 431,433) to warrant a verdict against the defendant. Trombley v. Stevens-Duryea Co. 206 Mass. 516, 519. Hartnett v. Gryzmish, 218 Mass. 258, 262. Marsal v. Hickey, 225 Mass. 170. Melchionda v. American Locomotive Co. 229 Mass. 202. The record is bare of anything to show that the defendant was on the machine at the time of the accident. The testimony that some unidentified person was with Hayden, although contradicted by the latter, had no tendency to show responsibility on the part of the defendant.

The motion of the defendant that a verdict be directed in his favor should have been granted. In accordance with St. 1909, c. 236, judgment may be entered for the defendant.

So ordered.