| Mass. | May 27, 1930
This is an action to recover for personal injuries alleged to have been received by the plaintiff by reason of the gross negligence of the defendant while she was riding as his guest.
The plaintiff testified that at about 10:15 or 10:30 o’clock in the evening of June 11, 1927, accompanied by a friend, she was waiting for a street car in South Norwood; that the defendant, who lived on the next street to her, came along in his automobile and offered to take them home; that she and her friend sat in the back seat until her friend alighted at her home on Park Street, and the defendant then asked the plaintiff to sit in the front seat with him, which she did; that instead of taking her to her home by the shortest way, he went “the longest way ’round”; that when they were on Neponset Street he suggested that they go by a circuitous route to her home, and she told him it was late and she wanted to go home; that they had then reached a point opposite Pleasant Street. She further testified that she asked him what time it was; that he had on a wrist watch and started to look at it; that she had not seen the watch before; that when he started to look at the watch they were about opposite a point marked “180” on a map which was offered in evidence. She stated that “The defendant, in looking at his wrist watch, bent his head down, did not take his eyes
The defendant testified that the lights of a car going south on Neponset Avenue blinded him; that he could not see anything; that he put his brakes on; that he did not know where he was going; that he was travelling at a speed of about twenty miles an hour; that after he applied his brakes his car went one hundred eighty feet and was still going at a speed of twenty miles an hour.
The jury were not bound to believe the explanation offered by the defendant as to the circumstances attending the accident. If, as they could have found from the testimony of the plaintiff, the defendant, instead of watching the road and attending to the driving of his car, placed his hand under the dashboard for the purpose of looking at his watch and kept it there until his automobile had crossed
Upon the testimony of the plaintiff it could not have been ruled as matter of law that her negligence contributed to the accident. The fact that she asked the defendant for the time was not negligence on her part. When she made the inquiry it could have been found that she did not know that he wore a wrist watch, and it cannot be said as matter of law that by making the inquiry she had any reason to expect the defendant would abandon all care in the operation of his automobile. The burden of proving contributory negligence was on the defendant. G. L. c. 231, § 85. Mercier v. Union Street Railway, 230 Mass. 397" court="Mass." date_filed="1918-05-27" href="https://app.midpage.ai/document/mercier-v-union-street-railway-co-6434452?utm_source=webapp" opinion_id="6434452">230 Mass. 397, 403. O’Connell v. McKeown, 270 Mass. 432" court="Mass." date_filed="1930-02-25" href="https://app.midpage.ai/document/oconnell-v-mckeown-6439384?utm_source=webapp" opinion_id="6439384">270 Mass. 432. Gallup v. Lazott, post, 406.
Apart from the due care statute, we are of opinion that it could not properly have been ruled that the plaintiff had not sustained the burden of proving due care on her part. The decision in Oppenheim v. Barkin, supra, upon this question is distinguishable in its facts from the case at bar.
The issues of gross negligence on the part of the defendant and of contributory negligence of the plaintiff were rightly submitted to the jury. No error of law appears in the conduct of the trial.
Exceptions overruled.