Askowith v. Massell
| Decision Date | 31 May 1927 |
| Parties | ASKOWITH v. MASSELL. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; Marcus Morton, Judge.
Action of tort by Charles Askowith against Morris Massell to recover for personal injuries while in an automobile owned and operated by defendant. Verdict for defendant, and plaintiff excepts. Exceptions overruled.L. Brown, of Boston (W. H. Walker, of Boston, with him), for plaintiff.
G. E. Mears, of Boston, for defendant.
This is an action to recover for personal injuries suffered by the plaintiff while he was in an automobile owned and operated by the defendant. The declaration is in three counts. The third count was waived and the case was submitted to the jury on the first and second counts alleging ordinary negligence and gross negligence of the defendant in the operation of an automobile in which the plaintiff was invited by the defendant to ride. The plaintiff, the defendant and three other persons, all residents in this commonwealth, were in the automobile at the time of the accident, which was driven by the defendant on their return from a fishing trip to Lake Parlin in the state of Maine. It was agreed that the expenses should be divided between them, and that each member also should pay a proportionate share of the cost for gasoline, oil and garage bills. The plaintiff paid his share of the operating expenses to the defendant, who also contributed his part and made no other charge for transportation.
[1][2] It was undisputed that the accident happened on a road in Skowhegan in the state of Maine. The plaintiff contended, that by the law of that state he was entitled to recover if the jury found that while he was in the exercise of due care the accident was caused by the defendant's negligence. The present action having been tried before the enactment of St. 1926, c. 168, which provides that the court shall take judicial notice of the law of a foreign state, it was for the jury to determine this question, under instructions to which no exceptions were taken. Electric Welding Co. v. Prince, 200 Mass. 386, 86 N. E. 947,128 Am. St. Rep. 434. The plaintiff introduced decisions of the Supreme Judicial Court of Maine as to the liability of ‘one in charge of a vehicle toward a guest or passenger riding therein.’ The defendant on the other hand called a member of the bar of Maine, found by the court to be qualified to express an opinion, who testified, ‘that the liability of a driver of an automobile to a guest with whom he was driving was analogous to that of a gratuitous bailee; that the duty of the guest ‘would be due care under the circumstances.’' When asked with reference to the negligence of the driver, ‘Is that simple negligence or something more?’ he answered, ‘Gross negligence.’ In cross-examination the witness agreed that the decision in Avery v. Thompson, 117 Me. 120, 103 A. 4, L. R. A. 1918D, 205, Ann. Cas. 1918E, 1122, which had been put in evidence by the plaintiff, represented the law of the subject with which it dealt. The case of Avery v. Thompson involved the degree of care required of the driver of an automobile to a person invited by him to ride as a guest. The court after a full citation of cases held that the driver was liable for simple negligence, or gross negligence toward the invitee, and that proof of simple negligence was sufficient. The jury accordingly could find that the law of Maine was as stated in this decision. Electric Welding Co. v. Prince, supra.
The questions of the plaintiff's due care and the defendant's negligence were issues of fact, and in...
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...53 Ohio App. 110, 4 N.E.2d 286. See Sleeper v. Mass. Bonding & Ins. Co., 283 Mass. 511, 186 N.E. 778, explaining Askowith v. Massell, 260 Mass. 202, 156 N.E. 875), and this court has so held in affirming a dismissal of a complaint where the Connecticut guest statute was involved (Master v. ......
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Bushouse v. Brom
...assumed by the Massachusetts court in Haines v. Chereskie, 301 Mass. 112, 16 N.E.2d 680, which is distinguishable from Askowith v. Massell, 260 Mass. 202, 156 N.E. 875, on the ground that a definite agreement in advance existed in regard to the sharing of expenses. We do not apprehend that ......
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Kerstetter v. Elfman
...262 N.Y. 609, 188 N.E. 86; see also Sleeper v. Massachusetts Bonding & Ins. Co., 283 Mass. 511, 186 N.E. 778, explaining Askowith v. Massell, 260 Mass. 202, 156 N.E. 875. the other hand, where there is such an understanding or contract, whether express or reasonably to be inferred, the auth......
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...or any legal benefit conferred by the plaintiff upon the defendant [driver] at the latter's request." The case of Askowith v. Massell, 260 Mass. 202, 156 N.E. 875, cited by counsel, is not of assistance. The case arose out of an accident in Maine, and the law of that state was a matter of a......