This is an action of tort to recover for a personal injury alleged to have resulted from the negligent operation or maintenance of the defendant’s automobile. The plaintiff obtained a verdict. The case is here on the defendant’s bill of exceptions.
The evidence most favorable to the plaintiff shows the following circumstances. The plaintiff, who could not speak English, on the evening of the accident visited the house of her brother and his wife who was the defendant’s mother. Shortly before the accident, the defendant left the house and moved his automobile to the front of the house, with the left wheels parallel to and against the curbing. With the motor running and the lights on, he waited for the plaintiff to come outside. When she did so, he “called to her that he . . . would take her to her home. She said she did not want to go whereupon the defendant said he would give her a ride. He called to the plaintiff to go around the back of *172 his automobile.” The plaintiff admitted that, as a result of the conversation, she did go around the back of the automobile to get into it. It was dark and when she stepped “from the curbing into the street she tripped over a pipe that extended 24 inches from the back of the trunk of the automobile and fell and broke her arm.” She testified that the pipe was “tied . . . down low” and that, when she hit it, it was hot. She did not see the pipe until after she had fallen. The pipe was an extension of the exhaust pipe and the plaintiff testified that the defendant said that “he forgot to take it out.”
The defendant duly excepted to the judge’s refusal to give an instruction that if “the jury finds that. . . the plaintiff was in the process of walking to the defendant’s car with the intention of entering . . . [it! for the purpose of receiving a ride . . . then ... for the plaintiff to recover, the jury must find that the defendant was grossly negligent.” The defendant also excepted to a portion of the judge’s charge “that the evidence indicated . . . [that the plaintiff! was not a passenger and not in the status of a passenger at the moment of her injury” and to the judge’s failure to direct a verdict.
1. The crucial testimony is that of the plaintiff admitting (a) that she had been invited to ride by the defendant before she was injured, and (b) that when she was injured she was on her way to get into the automobile. By this latter evidence (relating to her own state of mind and intention) she is bound.
Hannon
v.
Hayes-Bickford Lunch System, Inc.
If a host-guest relationship had begun before the accident occurred and a gratuitous undertaking to the plaintiff had been assumed by the defendant, the defendant owed to the plaintiff “only the duty to refrain from gross negligence.”
Bagley
v.
Burkholder,
We assume that, if they be believed, the plaintiff’s statements, that “a pipe . . . extended 24 inches from the back of the trunk of the automobile” and that the defendant said “he forgot to take . . . [the pipe] out,” would warrant a finding of ordinary negligence. See
Robinson
v.
White Fuel Corp.
Since the plaintiff is bound by her testimony that she was on her way to get into the automobile when the accident occurred, findings would not have been warranted that she had not then accepted the defendant’s gratuitous undertaking to give her a ride, and that a host-guest relationship did not then exist. In the absence of evidence warranting a finding of gross negligence, the plaintiff presented no case for the jury. The trial judge should have granted the defendant’s motion to direct a verdict for him.
2. The evidence, in view of the obviously highly temporary character of the presence of the automobile and the minor nature of the projection, if there was any, was not
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sufficient to present any issue of fact whether the defendant was maintaining a nuisance on the street in the sense of an obstruction for an unreasonable length of time unduly and unreasonably interfering with the rights of the public. See
Gaw
v.
Hew Constr. Co.
Exceptions sustained.
Judgment for the defendant.