Banks v. Braman

• Decision Date: 20 June 1905
• Citation: 74 N.E. 594,188 Mass. 367
• Parties: BANKS v. BRAMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

188 Mass. 367

74 N.E. 594

BANKS v. BRAMAN.

Supreme Judicial Court of Massachusetts, Suffolk.

June 20, 1905

COUNSEL

Choate Hall & Stewart, for plaintiff.

Benj. D. Hyde, for defendant.

OPINION

KNOWLTON C.J.

This is an action to recover for injuries received from being struck by an automobile alleged to have been negligently run at an excessive rate of speed and negligently managed by the defendant. The case was submitted to the jury on two alleged grounds of liability--one, that the defendant, with gross negligence, wantonly and recklessly injured the plaintiff and the other, that the plaintiff was in the exercise of due care, and that the injury was due to the defendant's negligence. On the first claim the judge instructed the jury as follows: 'Gross negligence is great negligence. To make out the proposition of gross negligence, you must be satisfied that the way the machine was operated by Braman was reckless--was careless to the degree of recklessness; that it was run with a reckless disregard of the rights of Banks in this street. If that is established, namely, that there was a reckless disregard of the rights of Banks, in the way this machine was run, then Banks is not required to show that he was himself in the exercise of due care. If the way---- I repeat this for the purpose of plainness, perhaps unnecessarily: If the manner in which the machine--the automobile I mean by the 'machine'--was run on the occasion of this accident was such that it was grossly negligent (that is, careless to such a degree that you can say it was reckless, using your common sense and judgment and applying them to the evidence), then Banks is not required to show that he was in the exercise of due care, because, if the defendant's carelessness was gross, in the sense that has been defined to you, there is an obligation to pay damages independent of the matter of due care.' The defendant excepted to this instruction. The jury were instructed as to the liability for a failure to exercise ordinary care, but there was no fuller statement of the law on this branch of the case.

The question is whether the difference between the two kinds of liability was sufficiently pointed out to give the jury an adequate understanding ot it. The difference in culpability of the defendant, which distinguishes these different kinds of liability is something more than a mere difference in the degree of inadvertence. In one case there need be nothing more than a lack of ordinary care, which causes an injury to another. In the other case there is willful, intentional conduct, whose tendency to injure is known, or ought to be known accompanied by a wanton and reckless disregard of the probable harmful consequences from which others are likely to suffer, so that the whole conduct together is of the nature of a willful, intentional wrong. The subject was discussed at length in Aiken v. Holyoke Street Railway Co., 184 Mass. 269-271, 68 N.E. 238, 239, and a part of the language used in the opinion is as follows: 'It is equally true that one who willfully and wantonly, in reckless disregard of the rights of others, by a positive act or careless omission exposes another to death or grave bodily injury, is liable for the consequences, even if the other was guilty of negligence or other fault in connection with the causes which led to the injury. The difference in rules applicable to the two classes of cases results from the...