302 Mass. 12 | Mass. | 1938
These three actions of tort, to recover compensation for personal injuries sustained by the plaintiffs while riding as guests in an automobile operated by the defendant, were tried to a jury, which returned a verdict in each case for the plaintiff. They now come before us on the exceptions of the defendant to the admission of certain evidence and to the denial of his motion in each case for a directed verdict.
The defendant excepted to the admission in evidence of records of the New England Sanitarium relative to the treatment of the plaintiffs following the accident, on the ground that the hospital was not one within the meaning of G. L. (Ter. Ed.) c. Ill, § 70, and that therefore its records were not admissible under the provisions of G. L. (Ter. Ed.) c. 233, § 79. Prior to the admission of the records, the record librarian testified that the hospital was an incorporated one; that it received no support by contributions from the Commonwealth or from any town; that it was supported by its receipts from patients but treated the “charity cases for the Town of Stoneham" without charge. Whether the hospital involved was one included within the provisions of G. L. (Ter. Ed.) c. Ill, § 70, was a preliminary question of fact to be decided by the judge. Gorton v. Hadsell, 9 Cush. 508, 511. Lake v. Clark, 97 Mass. 346, 349. Commonwealth v. Reagan, 175 Mass. 335, 336, 337. Davis v.
The defendant’s motion in each case for a directed verdict was specifically rested on two grounds. The first reads as follows: “As a matter of law the credible evidence does not warrant the finding that the defendant was guilty of gross negligence.” Manifestly the judge could not separate the evidence into that which was credible and that which was incredible. The weight to be given evidence is commonly for the jury. Commonwealth v. Davis, 284 Mass. 41, 51. Without approving the form, we treat the use of the word “credible” as inadvertent, and the motion, so far as the first ground is concerned, as if it had been based on all the evidence. The motion could not properly have been granted on that ground. There was ample evidence, which need not be recited in detail, to warrant a finding by the jury that the defendant at the time of the accident was guilty of gross negligence. It is sufficient to say that for a considerable period prior to the accident and when it occurred he was driving at the rate of speed of fifty to sixty miles an hour (see G. L. [Ter. Ed.] c. 90, § 17; Picarello v. Rodakis, 299 Mass. 33, 36) over roads with which he was not familiar. There was also evidence of ‘‘persistence
The second ground assigned in each of the motions for directed verdicts is as follows: “Testimony of the plaintiff is that she (he) warned and cautioned the defendant on improper and negligent driving; that she (he) left the car at Canobie Lake and again at Lawrence, and voluntarily returned each time. Having had an opportunity to leave the car, she (he) elected to return and remain in the car, and as a matter of law, plaintiff cannot recover.” While this ground leaves out of consideration other evidence bearing on the issue of assumption of risk or contributory negligence on the part of the plaintiffs, since the result will be the same, we treat the motions for directed verdicts on this ground as if they were predicated on all the evidence.
With relation to this issue the evidence tends to show the following facts: On the evening of September 28, 1933, the plaintiffs and one Murphy and one Day started from the Metropolitan Theatre in Boston to drive to Rocking-
It is true that recovery may be denied a passenger who, after having had an opportunity to alight, elects to remain in a vehicle that is being driven in a dangerous manner, the operator of which is utterly heedless of the passenger’s remonstrances and says or does nothing to lead the passenger to believe that the vehicle will thereafter be driven in a prudent manner. Laffey v. Mullen, 275 Mass. 277, 278-279. Curley, v. Mahan, 288 Mass. 369, 374. Where, however, as in the cases at bar, the words or conduct of the operator, when remonstrated with by the plaintiffs, might be found to have led them to believe that the remonstrances would be heeded by the driver, and they were in a situation where they were far from home at a late hour at night and there was no evidence of other means of conveyance available to them, we think the judge could not rule as matter of law that they assumed the risk and were negligent in continuing to ride with the defendant. Dean v. Bolduc, 296 Mass. 15, 18. Moore v. Patrone, 298 Mass. 198, 199. The question was one for the determination of the jury. O’Connell v. McKeown, 270 Mass. 432, 435. Coldbeck v. Flint, 281 Mass. 360, 363. Semons v. Towns, 285 Mass. 96, 98.
Exceptions overruled.