## Facts

- Betty Smith alleged she was injured when a bus traveling on Main Street in Winthrop, Massachusetts forced her car to the right, causing a collision with a parked car.
- The incident occurred about 1:00 a.m. on February 6, 1941, as Smith drove east on Main Street toward Winthrop Highlands.
- Smith described the vehicle as a large bus traveling about forty miles per hour, but no witness identified the bus’s owner.
- Rapid Transit, Inc. operated buses in Winthrop under a Department of Public Utilities certificate covering three routes, including one on Main Street, in effect at the time.
- Another bus line operated in Winthrop but not on Main Street.
- Rapid Transit’s timetable listed departures via Main Street at 12:10 a.m., 12:45 a.m., 1:15 a.m., and 2:15 a.m., with about a thirty-minute running time.
- The evidence showed only that one of Rapid Transit’s buses might have been on Main Street near the relevant time, not that the offending bus was Rapid Transit’s.

## Issues

1. Whether the evidence permitted a jury to find, by a preponderance of the evidence, that the bus involved in the accident was owned by Rapid Transit, Inc. and operated by its employee within the scope of employment.

## Decision

- The Supreme Judicial Court of Massachusetts affirmed the directed verdict for Rapid Transit, Inc.
- The court held the plaintiff’s proof did not warrant a finding that the bus was owned by the defendant; ownership and identity remained conjectural.
- Because the plaintiff failed to show identity of the tortfeasor, the court did not reach whether the bus driver was negligent.

## Legal Principles

- A plaintiff must present evidence that makes it more likely than not that the defendant was the responsible actor; mere probability based on general conditions is insufficient.
- Evidence that a defendant held the only franchise to operate a bus line on a street, plus a schedule showing a bus might have been present, does not by itself support a finding that the defendant’s bus caused the injury.
- Proof resting only on “mathematical chances” that somewhat favor the plaintiff’s theory does not satisfy the preponderance standard when it leaves the defendant’s responsibility speculative.

## Conclusion

The court required non-speculative evidence linking the defendant to the specific instrumentality that caused the injury and held that route exclusivity and scheduling evidence created, at most, a probabilistic inference insufficient to submit identity and ownership to a jury.


Smith v. Rapid Transit, Inc., 317 Mass. 469, 58 N.E.2d 754 (Mass. 1945)