| Mass. | Nov 26, 1930
These are two actions of tort for personal injuries sustained by the plaintiffs, husband and wife, while they were occupants of an automobile owned and operated by the defendant. The cases were tried to a jury. At the close of the plaintiffs’ evidence, the defendant also rested and, in each case, in writing moved that a verdict for the defendant be entered. The judge granted the motions and reported the cases to this court with the stipulation that “if the Supreme Judicial Court shall decide that the court’s ruling is right, judgment is to be entered for the defendant on the verdicts. If the court’s ruling is wrong, judgment is to be entered for the plaintiff in each case for the sum of $500; that is, $500 for each plaintiff.
In their aspect most favorable to the plaintiffs the facts disclosed in the report are as follows: In December, 1926, the plaintiff Sarah Chooljian bought a house in Water-town, Massachusetts. There was a two-car garage upon the premises which she at once rented to two different persons for $8 a month each. The defendant, who is her brother, lived with her in the house paying for his board and room. In May, 1927, he said to her that he had
The further facts appear in the report that between May and June 12, 1927, the day of the accident, the plaintiff Sarah Chooljian had ridden with the defendant; that before starting on June 12 she said to him, “ how would it be to go some place today? ” and he replied, “ all right, we will get our dinner and we will go to Nantasket ” ; that after dinner they got into the automobile, which was driven by the defendant, both plaintiffs riding on the rear seat; that when the automobile turned into Concord Avenue, in Cambridge, the plaintiffs noticed that the automobile was “ zigzagging ” and “ shaking ”; that each plaintiff spoke to the defendant about the car “ wobbling ”; that the plaintiff Sarah “ got kind of frightened and told the defendant to stop and see what was the matter with the car ”; that the defendant did not stop the car, though told to do so three times, but went on driving for “ two minutes or so ” until the car going “ zigzag ” tipped over on its left side, causing physical injuries to both plaintiffs.
On the above facts the jury would have been warranted in finding that the defendant was negligent in continuing to operate the car without ascertaining the cause of the irregularity of its motion and therefrom determining whether it was safe to drive the car in the condition found. It is the contention of the defendant, however, that the facts show that the plaintiffs were his guests, particularly the husband, and that the facts do not warrant a jury finding of gross negligence. We think the facts reported in respect to the plaintiffs’ use of the auto
The case of each plaintiff should have been given to the jury on the issue presented by the first count of each declaration. It follows, in accordance with the terms of the stipulation, supra, that judgment is to be entered for each plaintiff in the sum of $500.
So ordered.