Weiner v. Mairs

125 N.E. 149, 234 Mass. 156, 1919 Mass. LEXIS 1009

Opinion

Braley, J.

The report of the presiding judge, who ordered a verdict for the defendant, shows evidence on which the jury would have been warranted in finding that, while the plaintiff, using due care, was driving his automobile in the night time over a public way, it came into collision with the defendant’s automobile through the negligence of the driver, the defendant’s son, who, unaccomponied by his father, was operating the car. But, even if the defendant owned, and his son was using the car, the plaintiff, in order to recover, was obliged to introduce evidence from which the jury could find that the son acted as the father’s servant. Trombley v. Stevens-Duryea Co. 206 Mass. 516. If the material evidence on this question as shown by the record was accepted by the jury as true, but one conclusion is possible, that the son without his father’s knowledge was out on a "joy ride” or “frolic of his own.” If, however, the evidence either wholly or partially could be disregarded, as the plaintiff’s counsel urges in argument, there is no proof of liability. The defendant accordingly is entitled to judgment on the verdict.

So ordered.