283 Mass. 132 | Mass. | 1933
This is an action of tort to recover for personal injuries received by the plaintiff while a passenger in
There was evidence which, if believed, established the following facts: Shortly before eight o’clock on the evening of April 4, 1931, the defendant with his friend, a son of the plaintiff, went to the home of the plaintiff’s daughter. The defendant owed the plaintiff a small sum on account of a bill the plaintiff had paid for the expense of cleaning his clothes. The defendant agreed to take the plaintiff to her home and to do some errands in consideration of which the debt was to be cancelled. He had previously volunteered to take the plaintiff home, but as she protested that it was not fair, the agreement was made for cancellation of the debt. . When they started for the plaintiff’s home it was dark. The defendant knew that the foot brake of his automobile was not in good condition. It was a pleasant night and there was no other traffic on the road, which was dry and had a macadam surface, twenty feet wide, with gravel shoulders. Before the accident occurred, and while travel-ling at a speed of about thirty or thirty-five miles an hour, the defendant leaned forward and attempted to adjust the lights, as he testified “fooling around with the dashboard,” in an attempt to get more lights. While doing this he could not see the road ahead of him and the automobile veered from the right side of the road to the left, travelled on that side, went off the road, struck a tree, glanced off, and struck another tree sixteen feet farther along. The
The foregoing evidence, if believed, was sufficient to warrant a finding of gross negligence of the defendant. Rog v. Eltis, 269 Mass. 466. Kirby v. Keating, 271 Mass. 390. Meeney v. Doyle, 276 Mass. 218. Connors v. Boland, 282 Mass. 518, and cases cited.
The judge found for the plaintiff on each count in the sum of $5,000. The defendant claimed a report respecting the denial of his motion for a finding in his favor. The Appellate Division ordered a report of the case dismissed. From this order the defendant appealed.
The general rule is that infants are liable for their torts. Sikes v. Johnson, 16 Mass. 389. Homer v. Thwing, 3 Pick. 492. The plaintiff in the present case did not have to prove a contract with the defendant in order to prove the cause of action upon which she relies. She was in the defendant's automobile with his consent, and apart from any alleged contract and whether it be ultimately affirmed or dis-affirmed by the minor she was entitled at least to be protected by him against injury due to his gross negligence. The contract upon which the defendant relies had no rela
As we are of opinion that the evidence warranted a finding of gross negligence of the defendant under the second count of the declaration, it is unnecessary to consider questions arising under the first count.
Order dismissing report affirmed.