302 Mass. 273 | Mass. | 1939
The jury returned a verdict for the plaintiff on the first count of her declaration, which alleged that her injuries were sustained by reason of negligence in the operation of the defendant’s automobile. It found for the defendant on the second count of the declaration, which alleged gross negligence of the defendant. It also answered in the negative the special question, submitted to it by the trial judge, which asked if the plaintiff was injured in consequence of the gross negligence of the defendant. The exceptions are to the denial by the trial judge of a motion for a directed verdict, to his refusal to give certain requests for rulings, and to a portion of his charge.
The plaintiff testified that she and the defendant were members of a club and that at one of its meetings in April, 1932, she, with other members, was invited to go to the defendant’s house in Arlington. The members objected as they thought it was too far from the "car,” but the defendant said she would come down with her automobile and meet all the members who could not come in their own automobiles. "Mrs. Morton told them when they arrived that she would come down and meet them.” On the appointed day the plaintiff went to Arlington by street car with a Miss Hill who was the “guest of the day.” Upon leaving the street car, she telephoned from a drug store to the defendant who said that she would “come down in a few minutes; which she did.” A Miss Harris, who was the State regent of the "society” (club), met them in the drug store "to go up with them.” Soon after, the defendant arrived in her
The defendant testified that on the appointed day she was at her home “preparing luncheon for her guests who were to come to the club meeting,” and that she received a telephone call from the plaintiff who told her that Miss Harris was with her and “as Miss Harris was our guest of honor, I said I would come down . . . .” She drove to the street corner where the plaintiff had told her she would be and stopped her automobile. Without getting out of her automobile, she reached across and opened the front door. At that time the plaintiff and Miss Hill were on the sidewalk. Miss Harris got into the front seat; Miss Hill got in and “then Miss Head started to get in, and she put her foot on the running board . . . .” She thought the plaintiff was in and was anxious “to be sure she didn’t start the car until everybody was in.” She had invited the club members to come to her house.
There is nothing in the evidence that makes the case any better for the plaintiff. In fact Miss Hill, the only other witness who testified as to what the plaintiff was doing just before her injury, said that “her [the plaintiff’s] hand was on the door and her foot was on the running board . . .”; and the auditor who heard the parties in the first instance
If the relationship of “host” and “guest” as these words are commonly used, subject to what was said as to this relationship in Ruel v. Langelier, 299 Mass. 240, 242, had come into existence at the time of the plaintiff’s injury, she cannot recover. We are not aware that this precise question has been raised in any case where the facts are similar to those in the case at bar, and what is said hereinafter must be taken as applying to the facts in this case. There is no occasion or intent to lay down any general rule.
The plaintiff contends that the rule adopted in determining when a person becomes a passenger on a street car, see Duchemin v. Boston Elevated Railway, 186 Mass. 353, should apply in the case at bar. In the case just cited, the court said, at page 357, that it was not willing to go further than the doctrine stated in Davey v. Greenfield & Turner’s
A person, by signaling for a street car to stop, does not become entitled to the rights of a passenger. Welsh v. Concord, Maynard & Hudson Street Railway, 223 Mass. 184. It is the general rule that when a passenger has alighted from a street car his rights as a passenger cease. Niles v. Boston Elevated Railway, 225 Mass. 570, 572, 573. It was said, however, in the Niles case, at page 572, that “There may be cases where there is evidence to show that the carrier assumes to direct the movement of persons while upon the highway, or where such a duty rests upon it and where the facts justify the finding that although upon the highway, they are in the care of the carrier and the relation of passenger and carrier exists.” There was a retrial of
The relationship between the carrier and passenger pre
We do not think the situation is quite the same in the case at bar. The principle involved in the so called “host” and “guest” cases is that laid down in the leading case of Massaletti v. Fitzroy, 228 Mass. 487, as pointed out in Ruel v. Langelier, 299 Mass. 240, 242. See Dow v. Lipsitz, 283 Mass. 132.
We think that the case at bar comes within the rule stated in Ruel v. Langelier, 299 Mass. 240, where it was said, at page 242: “Coming now to the case before us, it must be clear that the degree of the defendant’s duty does not depend upon the physical position of the plaintiff at the moment of the accident, or upon whether she was then in the defendant’s automobile or outside of it, or upon whether in everyday language she would be described as a guest. The degree of the defendant’s duty depends upon whether the act of the defendant claimed to be negligent was an act performed in the course of carrying out the gratuitous undertaking which the defendant had assumed.” It is true that in the case just cited the court said that the act of the defendant in backing the automobile against the plaintiff was a step in carrying out the gratuitous undertaking of transporting the plaintiff to her home “which had begun when the plaintiff first stepped into the automo
We think that the defendant in the case at bar had assumed the gratuitous undertaking of transporting the plaintiff to her home, and that her act in starting the automobile was a part of this undertaking. The contention that while the plaintiff “was in the air” with her “right foot in the air and . . . [her] left foot on the ground . . . starting into the car in that motion,” within range of the open rear door, she could have changed her mind and withdrawn does not change the situation. The real test is to determine whether a gratuitous undertaking of the defendant had begun when the plaintiff was injured. The case is distinguishable from Fone v. Elloian, 297 Mass. 139. There it was pointed out, at page 140, that the defendant “no longer had, or assumed to have, any control over the person of the plaintiff. The plaintiff was free to go where he chose and to do as he wished.”
We think the trial judge should have granted the defendant’s motion for a directed verdict, and, this being so, there is no occasion to consider her other exceptions. The plaintiff took no exceptions. Entry is to be made of judgment for the defendant. G. L. (Ter. Ed.) c. 231, § 122.
So ordered.