287 Mass. 114 | Mass. | 1934
This is an action of tort to recover damages for injuries sustained by the plaintiff while riding in an automobile operated by the defendant. The declaration was in two counts for the same cause of action. The first count alleged that the plaintiff was a passenger for a valuable consideration and that the defendant was liable to him for ordinary negligence. The second count alleged that the plaintiff was a gratuitous guest of the defendant and that the defendant was liable to him for gross negligence. The answer was a general denial and contributory negligence.
The case was referred to an auditor, and was tried to a jury on the auditor’s report and on the testimony of witnesses. At the close of the evidence, subject to the plaintiff’s exceptions, the presiding judge directed the jury to return a verdict for the defendant on both counts of the declaration. The bill of exceptions contains all the evidence material to the issue to be decided. The parties have stipulated “that if the direction of the verdicts for the defendant on the first and second counts of the declaration was proper, judgment may be entered for the defendant on the verdict, but if the direction of the verdict on either count was improper a finding of $600 is to be entered for the plaintiff.”
The evidence in its aspects most favorable to the plaintiff’s contentions warranted the jury in finding the following facts: The plaintiff had been a close personal friend of one Stewart M. Gardner, a practising physician in Salem, and of Dr. Gardner’s family for a period of twenty-five or thirty years. On July 16, 1931, he went to the home of Dr. Gardner and his mother, the defendant, in Salem, for a social visit of a day or more, as he was accustomed to do. On such a visit about a week prior to July 17, 1931, the
The auditor found that the “plaintiff at the time of the accident was a social and gratuitous guest of the defendant ”; and the presiding judge inferably found that the evidence did not warrant the jury in finding that the plaintiff was riding with the defendant under a contract
Assuming the verdict was rightly directed on the first count of the declaration for the reason that the evidence required a ruling that the status of the plaintiff was not other than that of a gratuitous guest, the question for decision is, Did the evidence warrant a finding that the defendant was guilty of gross negligence? On the evidence pertinent to the issue, the jury warrantably could find the following facts: The defendant, while driving on the Newburyport Turnpike, overtook a truck, turned out to the left and passed it, and then turned to the right to come back to the right side of the travelled way. The automobile went farther to the right than was intended, ran into soft gravel at the edge of the road, then turned sharply to the left, crossed the road, went off the left side and turned over in a field. The truck was passed as the automobile was being
In accordance with the stipulation judgment is to be entered for the defendant on the verdict.
So ordered.