The judge directed a verdict for the defendant on the first count which was based on ordinary negligence, and submitted the case to the jury on the third count which alleged gross negligence.
The following facts could have been found: The plaintiff and the defendant were employees of George H. Reed & Co., Inc. (hereinafter called the company), which was insured for workmen’s compensation under the provisions of G. L. (Ter. Ed.) c. 152, and the plaintiff had not reserved his common law rights under § 24 thereof. It was the duty of the defendant to transport the employees of the company (including the plaintiff) to and from work each day in a. company truck “as a part of their arrangement of employment.” On February 19, 1943, the day of the accident, the plaintiff, while waiting in front of his home to be transported to work by the defendant, observed that one Connors was having difficulty in starting his automobile. Connors asked the plaintiff if he thought the driver of the company’s truck “would give him a little push when he arrived,” and the plaintiff said that he would ask him. In a few minutes the defendant arrived driving a company track, and the plaintiff, after telling him of Connors’s difficulties, asked him if he would “give him a little push.” The defendant made no reply but put his truck into position behind Connors’s automobile. Tuttle, a fellow employee of the plaintiff and the defendant and a passenger in the track, got out of the truck and directed the defendant “up against the other car.” Tuttle, thinking that the bumpers of the two vehicles “didn’t mesh very well,” stood on the left side of the front bumper of the truck to hold it down, and- the plaintiff, at Tuttle’s suggestion, stood on the opposite side of the bumper grasping the small radiator cap with one hand and the headlight with the other. The truck, driven by the . defendant, then pushed the Connors automobile to the farther end of a railroad bridge about two hundred fifty feet away at which point it left the truck and continued on its way. The road up to the bridge was slightly up grade. Beginning at the farther end of the bridge, which was flat,
1. The judge rightly directed a verdict for the defendant on the count for ordinary negligence. The plaintiff argues that his status on the truck at the time he was injured could be found to be that of a passenger for hire and that he could recover on proof of ordinary negligence. To acquire this status the plaintiff had the burden of proving that at the time that the accident happened he was “conferring a benefit in the performance of something in which the defendant had an interest.” Hall v. Smith,
But the plaintiff further argues, in effect, that apart from whether he conferred a benefit on the defendant in the manner just discussed, he was a passenger for hire by reason of his contract of employment. (We assume, as the defendant concedes, that if the plaintiff was injured while riding in a normal position in the truck while being transported to work under his contract of employment, he would have been a passenger for hire. See Loftus v. Pelletier,
2. The plaintiff argues that, if he was not a passenger for hire, he was a guest, and that the evidence would warrant a finding of gross negligence. Assuming that the plaintiff was a guest rather than a licensee, we are of the opinion that, although the evidence would warrant a finding of negligence, it does not rise to the degree of gross negligence as we have defined it. See Altman v. Aronson,
Exceptions overruled.
Notes
The declaration contained five counts, but the second, fourth and fifth were waived.