295 Mass. 576 | Mass. | 1936
This is an action of tort brought to recover for the conscious suffering and death of the plaintiff’s intestate, Albert Collette, which occurred on November 13, 1931, while he was riding as a guest in an automobile owned and operated by the defendant, Albert Mosqus, otherwise known as Albert Morse. At the close of the evidence, a motion filed by the defendant that a verdict be directed in his favor was denied, subject to his exception. The case was submitted to the jury on the second and third counts, the first and fourth having been waived by the plaintiff.
There was evidence from which the following facts could have been found. The plaintiff’s intestate was twenty-one years and eight months old at the time of his death. He was employed in a store in Worcester, and worked there the evening of November 12, 1931, until about 10:30 p.m. The defendant was employed at the same store. After finishing their work the intestate and the defendant entered the defendant’s automobile; later they met two girls who entered the automobile and they drove away. They stopped at a place where the defendant purchased a pint of liquor. The party then went to a cottage on Lake Quinsigamond where they remained until about 1:30 a.m.
The defendant, who was called by the plaintiff, testified that he was the owner of the automobile involved in the accident; that at that time he had a license to operate it; that the intestate was on the running board, and the two girls sat on the seat with the witness when the girls boarded the automobile; that on the way to the lake he bought some liquor; that they drove around Lake Quinsigamond, and
There was evidence that, after the defendant took the girls to their homes, accompanied by the intestate, he drove over Lakeside Street into a pond, known as Coes Pond; that the lights upon the automobile enabled searchers to locate it; that they remained lighted until it was removed from the pond; that the defendant operated his automobile from the end of Lakeside Street at a rate of speed which carried it into the water for a distance of from twenty to twenty-five feet; and that the plaintiff’s intestate was drowned.
Two police officers testified that about three o’clock on the morning of the accident at Coes Pond, they received a telephone call in response to which they went to a lunch cart, in Worcester, where they found the defendant lying on the floor; that his clothes were very wet; that he had a strong odor of liquor; that there was a cut on his left leg; that the left leg of his trousers was torn; that nothing was done for him at that time except to take the water out of his body; and that he was placed under arrest. There was testimony from one of these officers that he then went to the pond and started looking for the body of the plaintiff’s intestate; that he saw two beams of light coming up from the water; that he detailed officers who were with him to send additional help from headquarters; that thereafter by the use of grappling hooks they obtained the body of Albert Collette, and finally got the automobile out of the water; that the two beams of light were about fifteen feet from the shore; that the water at that point was approximately twenty-five feet deep; and that the automobile came out of the water with the front toward the shore. Another
A witness called by the plaintiff testified that he was an investigator for the registry of motor vehicles; that he went to the place of the accident on the morning it occurred at about eight o’clock, and there saw a pint liquor bottle in an upright position on the shore of the pond; that it smelled like gin and was less than half full; that he afterwards interviewed the defendant at the hospital and showed him the bottle; that the defendant told him it was the bottle of gin he purchased the night he went to the pond with the two girls and Collette; and that the defendant stated that Collette had but one drink and that he (the defendant) drank about half of the pint. There was no evidence that the plaintiff’s intestate, the defendant or the girls had any liquor that night except the pint of gin which had been purchased by the defendant, and no evidence that up to the time of leaving the girls at their homes there was any careless or improper operation of the automobile.
The single question for the determination of this court is whether there was error in the refusal of the trial judge, at
The evidence did not require a finding that the plaintiff’s intestate was guilty of contributory negligence.
It is plain upon the entire evidence that the defendant’s motion for a directed verdict in his favor was rightly denied.
Exceptions overruled.