Questions of fact‑‑In general

33. Questions of fact‑‑In general
Whether rental company truck involved in accident injuring worker was being operated at the time of the accident by and under control of a person for whose conduct rental company was legally responsible was question for jury in personal injury suit by injured worker against driver of the truck, driver's employer, and rental company, in view of stipulation by rental company that it was the registered owner of the vehicle involved in the accident, and in view of allegations by rental company that the driver was not its agent or servant, but had merely leased the truck. Feltch v. General Rental Co. (1981) 421 N.E.2d 67, 383 Mass. 603.
Whether plaintiffs who were painting service station on ladders assumed risk of being struck by motor vehicle which was started by unqualified operator and which struck their ladders or whether they were contributorily negligent was for jury. Bates v. Callahan (1964) 198 N.E.2d 644, 347 Mass. 772.
Whether registered owner of automobile brought to service station for servicing was legally responsible for her husband, who was unable to drive, when he, at request of brother of service station operator that he start motor, accelerated engine while gears were engaged, causing it to leap forward and strike ladders on which plaintiffs were painting, was question of fact under this section making proof of registration in defendant's name prima facie evidence that automobile was operated by one for whose conduct defendant was responsible. Bates v. Callahan (1964) 198 N.E.2d 644, 347 Mass. 772.
Whether registered owner of automobile, driven by wife on her own business and left in parking lot, was responsible under this section for negligent operation of automobile by parking lot employee, was a question for jury. Arrigo v. Lindquist (1949) 85 N.E.2d 782, 324 Mass. 278.
In action for damages to truck struck by automobile registered in name of corporate defendant as owner, evidence that operator of automobile had no driver's license, was intoxicated, and that he drove on rainy night between 40 and 45 miles per hour after he had been told by passenger not to drive so fast, that visibility was affected by steam on windshield, that a few seconds before accident operator took his hand off wheel to operate radio, and that automobile struck rear of plaintiff's parked truck, was for jury on issue of operator's negligence warranting verdict against corporate defendant. Le Blanc v. Pierce Motor Co. (1940) 30 N.E.2d 684, 307 Mass. 535.
Under this section making registration of automobile at time of collision prima facie evidence, in death action, that automobile was then being operated by one for whose conduct registrant was legally responsible, the mere fact of registration commonly carries the case to the jury on issue of driver's agency for registrant. Legarry v. Finn Motor Sales (1939) 23 N.E.2d 1011, 304 Mass. 446.
In action against automobile owner for third person's negligent operation of his automobile, where plaintiff showed owner's registration of automobile, prima facie evidence by this section of owner's responsibility for the conduct of the operator and the owner showed the auditor's finding, also given prima facie quality by c. 221, § 56 (repealed; see, now, Mass.R.Civ.P. Rule 53) that the owner was not responsible, neither conflicting piece of evidence retained its controlling prima facie force, but both, with the other evidence, were for the jury. Boyas v. Raymond (1939) 20 N.E.2d 411, 302 Mass. 519.
Where seller of ice cream rented portion of seller's premises to tenant who in lieu of rent bought all of his ice cream from seller, and boy accompanied by two other boys ordered ice cream from tenant for purpose of peddling it at outdoor gathering, and seller permitted use of its truck and driver to convey boys and ice cream to scene of outing, and tenant supplied four boxes to be used by the three boys and driver in selling ice cream, whether boy who was injured while riding on truck was a "business invitee" and not a "guest" of seller so as to render seller liable was for jury. Epstein v. Simco Trading Co. (1937) 8 N.E.2d 767, 297 Mass. 282.
In automobile guests' action against registered owner, statutory presumption, without evidence of driver's authority to invite guests to ride, was insufficient for jury. Bruce v. Hanks (1931) 178 N.E. 728, 277 Mass. 268.
Testimony, though contradicted only by prima facie evidence of legal responsibility for driver's conduct arising from registration of automobile in defendants' name, presented jury question. Ferreira v. Franco (1930) 173 N.E. 529, 273 Mass. 272.
Whether defendants were legally responsible for automobile driver's conduct was for jury under testimony and prima facie evidence arising from registration. Ferreira v. Franco (1930) 173 N.E. 529, 273 Mass. 272.
Evidence that automobile, after being repaired, was being returned to owner by garage when accident occurred, did not warrant directed verdict for defendant, in view of prima facie case established by this section. Haun v. LeGrand (1929) 168 N.E. 180, 268 Mass. 582.
Directed verdict for registered owner of automobile, causing accidental injury while being returned by garage man to owner after effecting repairs, was not authorized. Haun v. LeGrand (1929) 168 N.E. 180, 268 Mass. 582.
Prima facie case of responsibility, made by showing defendant to be registered owner of car causing accident, and weight of controverting evidence, are for jury; plaintiff not being bound by defendant's explanation. Thomes v. Meyer Store (1929) 168 N.E. 178, 268 Mass. 587.
Once evidence is introduced to rebut the presumption of M.G.L.A. c. 231, § 85A, such evidence and the remaining inference create a question of fact as to whether the vehicle is being operated by and under the control of a person for whose conduct the owner is legally responsible. Universal Underwriters Ins. Co. v. Howlett (App. Div. 1991) 1991 Mass.App.Div. 148.
34. ‑‑‑‑ Agent or servant, questions of fact
Passenger's testimony that operator of leased vehicle and passenger were returning from a nightclub in the early morning at the time of accident was sufficient to overcome the statutory prima facie evidence of a master‑servant relationship between the operator of a vehicle and the registered owner and thus existence of master‑servant relationship between operator and owner was question of fact in passenger's action against car rental company. Cheek v. Econo‑Car Rental System of Boston, Inc. (1985) 473 N.E.2d 659, 393 Mass. 660.
Evidence in action for injuries sustained by plaintiffs as passengers in automobile which allegedly belonged to defendant and was driven by defendant's nephew was insufficient to take to jury question whether nephew had had authority to invite plaintiffs. Gallo v. Veliskakis (1970) 259 N.E.2d 568, 357 Mass. 602.
Service station owner's brother's request that automobile owner's husband, who was unable to drive, start vehicle motor when it was at station for servicing permitted jury to find that owner's husband was temporarily agent of service station operator. Bates v. Callahan (1964) 198 N.E.2d 644, 347 Mass. 772.
Where written lease of tractor and trailer for use in interstate commerce, provided that lessor should select and furnish operator of vehicle and keep equipment in good operating condition, whether operator, who was in general employ of lessor, in manner in which he drove vehicle was an employee of lessor so as to render lessor liable for damage to third persons resulting from negligent operation of vehicle was for jury though lease also provided for complete control of operator by lessee. Garfield v. Smith (1945) 59 N.E.2d 287, 317 Mass. 674, certiorari denied 65 S.Ct. 1568, 325 U.S. 879, 89 L.Ed. 1995, certiorari denied 65 S.Ct. 1569, 325 U.S. 879, 89 L.Ed. 1995.
In actions for injuries received when plaintiff's automobile collided at street intersection with automobile owned and registered in corporate defendant's name, and driven by salesman, liability of salesman was for jury under evidence. Morton v. Dobson (1940) 30 N.E.2d 231, 307 Mass. 394.
Ordinarily, in an action involving a collision between automobiles at intersection of public ways, issues of negligence and due care are for jury. Morton v. Dobson (1940) 30 N.E.2d 231, 307 Mass. 394.
In actions against corporate defendant and its salesman for injuries received when plaintiff's automobile collided at street intersection with automobile owned and registered in corporate defendant's name and driven by salesman, evidence was for jury upon question of negligence of salesman, as corporate defendant's employee. Morton v. Dobson (1940) 30 N.E.2d 231, 307 Mass. 394.
Under this section the mere fact of registration commonly carries the case to the jury on issue of driver's agency for registrant. Legarry v. Finn Motor Sales (1939) 23 N.E.2d 1011, 304 Mass. 446.
35. ‑‑‑‑ Identity and ownership of vehicles, questions of fact
Although automobile dealer corporation's "dealer plates" were affixed to motor vehicle which jury found was negligently operated and caused plaintiff's injuries, trial court properly ruled that a prima facie case of control over operation of vehicle would be established only if corporation owned the vehicle; thus, in light of fact that evidence, which tended to show that corporation had sold the vehicle before the accident, was not binding on plaintiff, jury question was presented as to ownership of vehicle at time of accident. Nugent v. Classic Car Corp. (1979) 393 N.E.2d 934, 379 Mass. 913.
If there was evidence that defendant in tort action was the registered owner of the automobile which knocked plaintiff down and injured him, auditor's finding, that automobile which struck plaintiff was not defendant's automobile, ceased to have any controlling legal force and the question became one for the tribunal of facts on all the evidence. Fallon v. Darney (1938) 15 N.E.2d 462, 300 Mass. 365.
36. Damages‑‑In general
"Damages for injuries to person," within G.L.1921, c. 231, § 85A which made registered owner prima facie legally responsible for driver's conduct, did not include medical expenses incurred by husband in caring for wife's injuries. Wilson v. Grace (1930) 173 N.E. 524, 273 Mass. 146.
Medical expenses incurred by husband because of wife's injuries in automobile accident were not "damages for injuries to property" within G.L.1921, c. 231, § 85A which made registered owner prima facie legally responsible for driver's conduct. Wilson v. Grace (1930) 173 N.E. 524, 273 Mass. 146.
An award for damages to a motor vehicle involved in a collision cannot be made unless there is evidence of either the difference in value of the vehicle immediately before and immediately after the collision or the reasonable cost of restoring the vehicle to its condition immediately before the collision. Dreezer v. Rilley (App. Div. 1972) 49 Mass.App.Dec. 182.
37. ‑‑‑‑ Consequential damages
Consequential damages to father from injuries to daughter were not "damages to property" within G.L.1921, c. 231, § 85A which made driver of automobile causing damage prima facie agent of registered automobile owner and engaged in owner's business. Bruce v. Hanks (1931) 178 N.E. 728, 277 Mass. 268.
Statutory presumption that registered owner of automobile was responsible for driver's conduct was inapplicable to action for consequential damages. Karpowicz v. Manasas (1931) 176 N.E. 497, 275 Mass. 413.
38. Review
In order to be entitled to affirmance of trial courts' ruling that defendant was negligent, report must show, not only evidence of negligence but also evidence that person guilty of negligence was agent, servant, or employee of defendant or a person for whose acts defendant was responsible under provisions of this section. Poulin v. H. A. Tobey Lumber Corp. (App. Div. 1957) 13 Mass.App.Dec. 113.
M.G.L.A. 231 § 85A

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