Oppenheim v. Barkin

262 Mass. 281 | Mass. | 1928

Carroll, J.

The plaintiff, while riding with the defendant in an automobile as his guest, was injured shortly after four o’clock on the morning of June 1,1926, about two miles east of Worcester on the highway leading to Boston. The judge found that the defendant, who was operating the automobile, turned from the right side of the road to the left and ran into a post; “that there was no reason for his doing so unless he was asleep.”

The defendant testified that car tracks were on the right hand side of the way; that the space to his left of the car tracks was “wide enough to permit three cars to pass”; that just before the accident an automobile approached from the direction of Boston, “travelling on the defendant’s ‘right hand side’” and “going zigzag”; that he turned to the left to avoid a collision and hit the telegraph pole. This evidence was contradicted.

A witness for the plaintiff, who at the time of the accident was seated beside the defendant, testified that he saw no automobile approaching from the opposite direction; that “all of a sudden I saw our car start to go like that [indicating] and I didn’t know how to make out.” The plaintiff admitted that when the accident happened he was asleep on the rear seat and “knew nothing whatsoever about the journey from four o’clock until he was picked up after the accident.”

Assuming that there was evidence to support a finding of gross negligence by the defendant in driving his automobile across the highway from the right to the left side, Manning v. Simpson, 261 Mass. 494, there was no evidence that the plaintiff himself was exercising any care. He was asleep, and entrusted himself entirely to the care of the defendant, without using any precaution for his own safety. They left New York on May 31, about five o’clock in the afternoon, reaching Springfield about thirty minutes after one o’clock on the morning of June 1, and leaving Worcester about four o’clock. During the entire trip the defendant drove the car. A guest on the rear seat of an automobile cannot be expected to control its operation or interfere with its movement, but he must exercise some care. If' the plaintiff saw that the defendant was asleep, or, if he were awake and the plaintiff saw him turning away from the line of travel across the highway to the left, it could have been found to be the plaintiff’s duty to arouse the defendant or warn him of the approaching danger; or for the plaintiff to take some precaution for his own safety. This the plaintiff failed to do; he entrusted himself entirely to the care of the defendant, placing absolute reliance on the defendant’s caution. Bullard v. Boston Elevated Railway, 226 Mass. 262. Pigeon v. Massachusetts Northeastern Street Railway, 230 Mass. 392.

In Lambert v. Eastern Massachusetts Street Railway, 240 Mass. 495, 500, the judge instructed the jury, in effect, that a guest in an automobile cannot completely surrender himself to the care of the driver and then successfully contend he was in the exercise of proper care; that it was the plaintiff’s duty to exercise such caution as a reasonably prudent person would use. It was there held that this instruction was accurate; that the female plaintiff could not recover “if she negligently abandoned the exercise of her own faculties and trusted entirely to the care and caution of her husband, and his negligence caused or contributed to the accident.” Shultz v. Old Colony Street Railway, 193 Mass. 309. Miller v. Boston & Northern Street Railway, 197 Mass. 535.

The order dismissing the report is reversed. Judgment is to be entered for the defendant.

So ordered.