299 Mass. 551 | Mass. | 1938
The plaintiff, riding as a guest in an automobile owned and operated by the defendant, sustained personal injuries as the result of the automobile’s hitting a tree at the side of the highway. The plaintiff seeks to recover damages on the ground of the gross negligence of the defendant in operating the automobile. The defendant’s motion for a directed verdict was denied, subject to the defendant's exception, and there was a verdict for the plaintiff.
The only question now in controversy is whether the evidence warranted a finding of gross negligence on the part of the defendant. Such a finding was warranted.
On evidence, in some particulars contradictory, these facts could have been found: The accident occurred shortly after midnight of March 16, 1935. The night was clear, the road was dry and the defendant’s lights and brakes were “all right.” There was no traffic in the other direction. Near the place of the accident the road was twenty or twenty-two feet wide. At its left there was a soft shoulder about one and one half to two feet wide and beyond it a “gutter” about three or four inches deep. The defendant had passed one automobile and then another. He passed the second automobile, when he was travelling at a speed of about sixty to sixty-five miles an hour, at the beginning of a curve where “it was not quite level.” Two of the wheels of the defendant’s automobile “got in the soft sand at the side of the road, but nothing happened to the car.” About two hundred or three hundred feet ahead was still another automobile, which was operated by the defendant’s
Whether the defendant in operating the automobile was grossly negligent depends upon all the circumstances attending such operation considered in combination. Lefeave v. Ascher, 292 Mass. 336, 338. The evidence warranted an inference that the defendant was attempting to show' that his automobile was faster than his brother’s, that he was, in effect, racing with his brother. This use by the defendant of the highway, his speed, his previous experience when passing another automobile, his disregard of the plaintiff’s protest and the result of the defendant’s conduct, without justification in any unforeseeable condition of his automobile, the highway or traffic thereon, considered together and with the other circumstances of the accident, warranted a finding of such "indifference to present legal duty” on the part of the defendant, such "utter forgetfulness of legal obligations so far as other persons may be affected,” as constitutes gross negligence. Altman v. Aronson, 231
Exceptions overruled.
