295 Mass. 527 | Mass. | 1936
These are actions of tort in which the respective plaintiffs seek to recover compensation for personal injuries arising out of a motor vehicle accident. The several plaintiffs were guests of the defendant in a motor vehicle operated by him, and alleged that their injuries were caused by his gross negligence. The answer of the defendant in each case was a general denial and an allegation that the plaintiff was guilty of contributory negligence. The cases come before us on a single consolidated report by the trial judge, which contains all of the evidence material to the issues now raised. Lumiansky v. Tessier, 213 Mass. 182, 188. Barrell v. Globe Newspaper Co. 268 Mass. 99. Commonwealth v. McKnight, 289 Mass. 530. At the close of the evidence the trial judge ruled in each case that the plaintiff, being a gratuitous passenger in the defendant’s motor vehicle, could recover only on proof of the gross negligence of the defendant, and that as matter of law there was no evidence that the defendant was guilty of wanton and wilful misconduct; and refused to rule that there was no evidence as matter of law that the defendant was grossly negligent, or that the plaintiff was contributorily negligent as matter of law. The trial judge also made findings of fact of the tenor following: "... on September 8, 1934, the plaintiff, with other persons, was a guest of the defendant, riding in an automobile operated by the defendant. The party left Clinton at about 8 p.m., going to Lowell to a dance. They left Lowell for Clinton about 10:30 p.m., the defendant still the operator of the car. At different times Ann Settevedemio, one of the passengers of the automobile, said to the defendant, 'Take your time, Mickey.’ The night was very dark and rainy — so much so that except for the space in front of the driver kept clear by the windshield wiper, there was very little visibility.
All the evidence material to the issues involved in these appeals is reported. In these circumstances, the general
The distinction between gross negligence and simple carelessness has been stated in numerous recent decisions. Altman v. Aronson, 231 Mass. 588. Massaletti v. Fitzroy, 228 Mass. 487. Kirby v. Keating, 271 Mass. 390. Meeney v. Doyle, 276 Mass. 218. Green v. Hoffarth, 277 Mass. 508. Dow v. Lipsitz, 283 Mass. 132. Crowley v. Fisher, 284 Mass. 205. It need not be repeated. It would serve no useful purpose to review the evidence or to analyze the findings of fact made by the trial judge. While the cases are somewhat close to the line, we think it cannot be said as matter of law that the injuries to the plaintiffs were not caused by the gross negligence of the defendant. The cases at bar are distinguishable from Lynch v. Springfield Safe Deposit & Trust Co. 294 Mass. 170; Adamian v. Messerlian, 292 Mass. 275; Desroches v. Holland, 285 Mass. 495; McKenna v. Smith, 275 Mass. 149, and similar cases.
Whether the plaintiffs were guilty of contributory negligence was a question of fact. It could not rightly have been ruled as matter of law. Shultz v. Old Colony Street Railway, 193 Mass. 309.
In each case
Order dismissing report affirmed.