288 Mass. 369 | Mass. | 1934
This is a joint bill of exceptions of Thomas E. Curley, the plaintiff, in the case against the defendant Thomas Mahan, and of the defendant Alexander Stawiecki in the case of Curley against Stawiecki, consolidated by agreement of all parties in interest.
The actions are in tort. They arise out of personal injuries received as the result of an automobile accident that occurred on July 9, 1932, about 8 p.m. on a public way in the town of Dudley, which is the main road between South-bridge and Webster. The accident involved a collision between a motor cycle, owned and operated by the defendant Mahan, which was proceeding easterly toward Webster, and an automobile operated by the defendant Stawiecki, which was proceeding in the opposite direction toward Southbridge. The motor cycle was of the tandem style, with two wheels, and a seat directly behind the operator,
In the case against Mahan the plaintiff sought to recover on the ground of gross negligence. In the case against Stawiecki the plaintiff sought to recover on the ground of ordinary negligence. All the evidence material to the issues raised by the bill of exceptions is contained in the record. The facts most favorable to the plaintiff, as they might have been found by the jury, are in substance as follows: On the evening of July 9, 1932, the plaintiff, while in Charlton, Massachusetts, was invited by the defendant Mahan to ride with him to Webster on Mahan’s motor cycle. It was about 7:15 p.m. and had been raining. The plaintiff mounted on the tandem seat and Mahan drove the motor cycle toward Southbridge. From Charlton to Southbridge Mahan drove the motor cycle at a speed of forty-five to fifty miles an hour, although at times he slowed down to fifteen or twenty miles an hour. In Southbridge Mahan stopped to talk with some girls for five minutes. After that lapse of time Mahan proceeded in the direction of Webster at a speed of forty to forty-five miles an hour. They came to the foot of a hill just before the accident and there Mahan increased the speed to fifty or fifty-five miles an hour. The hill was about one thousand feet long with an uphill grade of six per cent in the direction in which the motor cycle was proceeding. At the crest of the hill there was a curve to the
Assuming a finding of the above facts and an additional finding, based on the testimony of the plaintiff, that the defendant Mahan was a careful driver except as to speed, it could have been ruled on such facts under G. L. (Ter. Ed.) c. 90, § 17, that Mahan was prima facie guilty of negligence in that just before the accident he operated his motor cycle for a quarter of a mile up the hill faster than thirty miles an hour, and also because he drove around a curve where his view was obstructed and there were intersecting roads faster than fifteen miles an hour. As between the plaintiff and Mahan, the ruling of the judge, “that regardless of the question of gross negligence . . . the plaintiff . . . was not in the exercise of due care, and that he was guilty of contributory negligence, or at least was guilty of such conduct as to preclude his recovery,” manifestly was intended to be an application of the rule of law governing similar facts laid down in Laffey v. Mullen, 275 Mass. 277, 279. More specifically, the judge evidently had in mind and framed his ruling upon the admitted, or uncontradicted, fact that the plaintiff at Southbridge had full opportunity to withdraw from the trip after he had objected to the excessive rate of speed at which the motor cycle was driven from Charlton to Southbridge. It is to be noted that the testimony of the plaintiff warranted a finding that after the motor cycle left Southbridge he objected to this excessive rate of speed almost up to the moment of the accident. In some circumstances it has been held that the failure of a guest to withdraw from a vehicle operated at an excessive rate of speed may be a bar to his action against the driver of the vehicle. Lambert v. Eastern Massachusetts Street Railway, 240 Mass. 495. Oppenheim v. Barkin, 262 Mass. 281. Similarly a plaintiff may be barred of action against a third person whose negligence contributed to his injury, even though the negligence of the host is not in such circumstances imputable to the guest. Shultz v. Old Colony Street Railway, 193 Mass. 309, 323. Barry v. Harding, 244 Mass. 588, 593.
The evidence did not warrant a jury in finding that Mahan was guilty of gross negligence because of the admitted fact that he turned his head to the left, for a period estimated by the plaintiff as about four or five seconds, while the plaintiff called to him to “Slow down” and he answered “not to be afraid.” There is nothing in the evidence or the circumstances to warrant a finding that, during the time of the above talk, Mahan’s attention was diverted from the operation of the motor cycle or that the turning of his head interfered with his seeing approaching vehicles. The fact that his view of the road was not wholly withdrawn distinguishes the case at bar from Crowley v. Fisher, 284 Mass. 205, and similar cases. See McKenna v. Smith, 275 Mass. 149; and compare Meeney v. Doyle, 276 Mass. 218, Green v. Hoffarth, 277 Mass. 508, 516.
The ruling that the plaintiff had no cause of action against Mahan was right. The plaintiff knew before Southbridge was reached the manner in which Mahan was operating his motor cycle and complained to him of it. There is no evidence that Mahan agreed to diminish the speed as they should go on; he said it was not dangerous. In these circumstances the plaintiff must be held • to have appreciated the risk of the excessive speed which continued after they left Southbridge and chose to take such risk. The case is governed by Laffey v. Mullen, 275 Mass. 277, 279.
The case against Stawiecki was submitted to the jury rightly. The testimony of the plaintiff and of the defendant
In each action the entry is to be
Exceptions overruled.