Barry v. Harding

• Decision Date: 26 April 1923
• Citation: 244 Mass. 588,139 N.E. 298
• Parties: BARRY v. HARDING.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

244 Mass. 588

139 N.E. 298

BARRY

v.HARDING.

Supreme Judicial Court of Massachusetts, Essex.

April 26, 1923.

Exceptions from Superior Court, Essex County; Henry T. Lummus, Judge.

Action of tort by James B. Barry against Jessie W. Harding for personal injuries received by plaintiff in collision between an automobile in which he was riding and one operated by defendant. Verdict for plaintiff for $5,000, and defendant brings exceptions. Exceptions overruled.

Defendant's exceptions were to the refusal of a motion for a directed verdict, to a portion of the charge as given, and to the refusal of the following requests for rulings:

[244 Mass. 589]1. If Barry knew that the car did not belong to Chandler, and knew on should have known that Chandler was not authorized to invite him to ride, then he did not become a guest, but was a party to Chandler's unauthorized act.

2. If Barry knew that the car did not belong to Chandler, and knew or should have known that Chandler was not authorized to invite him to ride in the car, the Barry and Chandler were engaged in a joint enterprise which they had no right to engage in.

3. If Barry was not the lawfully invited guest of any one while riding in the Essex car, then he is a party to any negligence of the driver of the car which contributed to his injury.

4. If Barry was not the lawfully invited guest of any one while riding in the Essex car, then he was not entitled to leave to the driver the proper operation of the car, and if negligent operation of the car contributed to cause his injury Barry cannot recover.

5. If Barry and Chandler were engaged in a joint enterprise which they had no right to engage in, then Barry cannot recover if Chandler's negligence contributed to his injury.

6. If the plaintiff was not being carried in the Essex car at the time he was injured by reason of any invitation of any one who was authorized to extend such an invitation, then he was a trespasser and not an invited guest.

8. If the defendant's car was within the plain field of vision of the plaintiff for a sufficient period of time to have enabled Chandler to stop his automobile if the plaintiff had spoken of the danger, then the plaintiff was guilty of contributory negligence.

9. One who voluntarily continues to ride as a guest in a car that is being operated at from 40 to 60 miles an hour on a public highway is not using due care.

13. If Barry by the exercise of ordinary care under the circumstances could have prevented his injury, then he cannot recover, even if the driver of the Essex car was in the exercise of due care.

14. If Barry was not using due care under the circumstances and his lack of due care contributed to his injury, then he cannot recover, even if the driver of the Essex car was in the exercise of due care.Michael J. Sullivan, of Boston, and James J. Ronan, of Salem, for plaintiff.

Harold Williams, Jr., and Charles E. Fay, both of Boston (Barker, White & Williams, of Boston, of counsel), for defendant.

PIERCE, J.

This is an action of tort to recover damages for personal injuries received by the plaintiff, when an automobile in which he was riding was in collision with an automobile operated by the defendant. At the close of all the evidence the defendant moved that a verdict be ordered for her and duly excepted to the refusal of the court to do so.

[1] It appeared by the evidence introduced by the plaintiff, and the jury were warranted in finding, that at about nine o'clock in the morning of August 12, 1919, Louis Chandler, foreman of repair department of the Goodell Garage in Salem, and one Saffer, an employee of that garage, took out an Essex car belonging to one Tierney to locate rattles and noises in the car; that they saw the plaintiff in front of the Marblehead car barn and invited him to ride to meet a street car which the plaintiff was to operate on its return trip from Marblehead to Salem; that Chandler and the plaintiff had known each other for some time; that the plaintiff knew that Chandler was an employee at the Goodell Garage; that the plaintiff had upon former occasions ridden in other automobiles operated by Chandler; that the plaintiff thereupon got into the rear seat of the automobile and Chandler then drove easterly along Pleasant street toward Marblehead, at the rate of 20 or 25 miles an hour; that as the car proceeded down Pleasant street toward Marblehead and reached a part of the road known as ‘the stretch’ it ran at a speed of 35 miles an hour; that the plaintiff did not know what made Chandler change his speed; that he did not say anything about it until just before they got to the junction, when he said to Chandler, ‘Don't put us over the stone wall, mister; you had better slow down a little bit;’ that as Chandler got to the junction, he slowed down to about one-half his speed, to 20 miles an hour; that the junction is 500 or 600 feet from Smith street, and in approaching Smith street there is a slight down grade; that there is a little up grade from Smith street to Pleasant street and that there is no grade at the junction of the two streets.

It could be found that Smith street enters Pleasant street on the south side, but does not cross it; that opposite the junction of Smith and Pleasant streets, and on the northerly side of Pleasant street, is an unused roadway entering Pleasant street from the north, in the middle of which and protruding slightly into Pleasant street is a large tree; that a single line of street railway tracks is on the southerly side of Pleasant street. It further appeared from the testimony of the plaintiff and...