312 Mass. 476 | Mass. | 1942
The plaintiff in the first case, and the plaintiff’s intestate in the second case, one Muise, were members of the crew of a fishing vessel of which the defendant was captain and part owner and which was engaged in making trips out of New Bedford and returning to that city, where the fish was marketed. Both men informed the defendant during the early morning of December 22, 1939, that they intended to leave that morning by train to take Christmas presents to some relatives in Gloucester. The captain told them that there was certain work to be done on the vessel’s equipment and that as he too intended to go to Gloucester they could accompany him and could return with him as he planned to make a fishing trip in season to market the catch the day after Christmas. The defendant, accompanied by McGrath and Muise, left New Bedford early on the morning of December 23, 1939, in the defendant’s automobile. The defendant operated the automobile. McGrath and Muise occupied the rear seat. The defendant testified that, while proceeding at about twenty-five miles an hour along a highway in Manchester, he was blinded by the lights of an approaching automobile, and that before he could slow down his own automobile went across the sidewalk and tipped over in a yard. There was evidence that there was a sharp curve to the left as the automobile was travelling where it crossed the sidewalk, and that it broke off a tree five inches in diameter, and, after breaking through a fence, composed of two horizontal sections of pipe attached to uprights of pipe located on the inside of the sidewalk, dropped down seventeen feet to the level of the land abutting the sidewalk. There was a mark two feet long made by the tire before it went over the curbstone, and there were brake marks fifty
McGrath and Muise were making the trip to Gloucester for their own personal benefit. The trip had no connection with their employment by the defendant and he acquired no pecuniary gain or advantage from their transportation. At the time of the accident neither, of these men was engaged in the performance of anything in which the defendant had an interest. His offer to transport them to and from Gloucester was not a part of the terms of their employment and it was not a matter incidental thereto. They were free to accept or reject the opportunity of riding with the defendant. He could not require them to accompany him. The plaintiffs urge that it was for the defendant’s benefit that McGrath and Muise return to New Bedford in time to go on the fishing trip at midnight on Christmas. The accident did not occur on the return trip, and if it had we do not intimate that they would stand in any different relation to the defendant than they occupied on the trip to Gloucester. At the time of the accident they were being transported gratuitously and solely as a matter of accommodation to them. They were riding as guests of the defendant. Flynn v. Lewis, 231 Mass. 550. Gaboury v. Tisdell, 261 Mass. 147. Baker v. Hurwitch, 265 Mass. 360. Jacobson v. Stone, 277 Mass. 323. Perkins v. Gardner, 287 Mass. 114. Roiko v. Aijala, 293 Mass. 149.
The only direct evidence of the speed of the automobile was the testimony of the defendant that he was travelling twenty-five miles an hour just before the accident. The jury were not required to believe this testimony. The plaintiffs contend that the course of the automobile and the damage sustained by it show that it was proceeding at
Exceptions overruled.