292 Mass. 316 | Mass. | 1935
The plaintiff seeks to recover compensation for personal injuries received by him while riding as a guest in an automobile owned and operated by the defendant. The chief question is whether there was evidence to support a finding that the cause of the injuries to the plaintiff was the gross negligence of the defendant. There was evidence tending to show these facts: The defendant with the plaintiff and another guest went for a ride in the early afternoon of a clear September day in 1931. They stopped at a house in West Stockbridge, where the guests drank beer; the defendant drank none, although about ten o’clock in the forenoon he had had beer. At this house the defendant wanted to bet $10 that his automobile could go sixty or more miles an hour. As they started on again, the three were on the front seat. The defendant was driving his automobile from West Stockbridge over a mountain to Stockbridge. All three were friends and familiar with the road. There was no other traffic. As they went up the mountain the plaintiff asked the defendant to slow down, but the latter, who was driving at a rate of speed exceeding forty miles an hour, replied that he would give him the ride of his life. The other guest also asked the defendant to drive more slowly. He gave no heed to these requests but continued without slackening his speed. The road, approximately seventeen feet wide, was dry, with a bituminous surface. On the right side as they were travelling, there was a gravel border two feet wide, then grass, and then a ditch. The defendant knew that the gravel was soft. The accident happened a short distance after they had passed the top of the mountain, where there were curves in the road, where in places one could see only a few yards ahead and where, at one point, there was a grade of seven per cent. The speed of the automobile was from forty to sixty miles an hour, or more, as it came to an intersecting road. The automobile, after travelling off the road a distance variously estimated at one hundred thirty-four
We are of opinion that all these facts with the inferences and implications of which they are susceptible warranted a finding of gross negligence. Bruce v. Johnson, 277 Mass. 273. Connors v. Boland, 282 Mass. 518, 522. Dow v. Lipsitz, 283 Mass. 132. MacEachern v. Stieler, 289 Mass. 346. Cini v. Romeo, 290 Mass. 532, 535. Although somewhat close to the line, the case at bar does not fall within the class where gross negligence was not shown, illustrated by Cook v. Cole, 273 Mass. 557, McKenna v. Smith, 275 Mass. 149, Richards v. Donohue, 285 Mass. 19, and Lefebvre v. Howell, 288 Mass. 253.
Plainly, it could not rightly have been ruled as matter of law that the defendant sustained the burden of proving contributory negligence on the part of the plaintiff, or conduct precluding him from maintaining his action. O’Con
Exceptions overruled.