It was not error to deny the defendant's motion for a directed verdict. The issue is whether the defendant's negligent conduct in the operation of a pickup truck could have been found to be a contributing cause of the collision between another truck, operated by Eric Scott, and a convertible driven by Nason's friend Ronald Perham, in which a mutual friend, the plaintiff's intestate, Oliver W. Nelson, Junior, was a passenger, which resulted in the immediate death of Perham and Nelson.
Direct testimony, and reasonable inferences therefrom, warranted the finding of these facts: On the morning of December 7, 1956, in Lincoln Plaza, Worcester, Nason (sixteen years of age), and Nelson left the school bus which had brought them from Boylston and got into Perham's car to drive back to Boylston. The three were "going to play
Persons who race automobiles on highways are liable in negligence for injuries to others caused by one of them. Brown v. Thayer, 212 Mass. 392, 397. Saisa v. Lilja, 76 F.2d 380 (1st Cir.). Carney v. DeWees, 136 Conn. 256, 262-263. Landers v. French's Ice Cream Co. 98 Ga.App. 317, 322. Reader v. Ottis, 147 Minn. 335. Jones v. Northwestern Auto Supply Co. 93 Mont. 224, 227-232. Hanrahan
Direct testimony of an agreement to race was not required. "For harm resulting to a third person from the tortious conduct of another, a person is liable if he ... (b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other...." Restatement: Torts, § 876. It was reasonable for the jury to infer that Nason's reckless close pursuit culminating in his passing Perham (at an unobserved but necessarily high speed) was a cause of Perham's excessive speed within the following moments up to the time of collision. There was evidence of challenge and response in the speed and relative positions of the two automobiles. Brown v. Thayer, 212 Mass. 392, 396. Jones v. Northwestern Auto Supply Co. 93 Mont. 224, 227-228, 230. See Smith v. Neibauer Bus Co. 328 Mass. 624, and cases cited; Rowe v. Gibson, 309 S.W.2d 173, 174-175 (Ky.).
The negligence of the defendant is patent apart from G.L.c. 90, § 24 (2) (a), which imposes a penalty for operating "upon any way or in any place to which the public has a right of access ... a motor vehicle ... upon a bet or wager or in a race."
The defendant has not argued his evidential exceptions.