Beaton v. Dawson

• Decision Date: 30 June 1939
• Citation: 303 Mass. 429,21 N.E.2d 965
• Parties: BEATON v. DAWSON (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

303 Mass. 429

21 N.E.2d 965

BEATON

v.DAWSON (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

June 30, 1939.

Exceptions from Superior Court, Suffolk County; Morton, Judge.

Separate actions by Elizabeth J. Beaton, p. p. a., against Hugh Dawson, to recover damages for personal injuries alleged to have been sustained as result of operation by defendant of a motor vehicle in which plaintiff was riding, and by John Beaton against Hugh Dawson, to recover consequential damages resulting to plaintiff in second action as father of plaintiff in first action. Judgments for plaintiffs, and defendant brings exceptions.

Exceptions sustained, and judgments for defendant.R. W. Frost and M. B. Breath, both of Boston, for plaintiff.

M. Z. Kolodny and M. T. Prendergast, both of Boston, for defendant.

COX, Justice.

These are two actions of tort, the first being brought by the minor plaintiff, hereinafter referred to as the plaintiff, to recover damages for personal injuries alleged to have been sustained as the result of the operation by the defendant, on December 24, 1936, of a motor vehicle in which she was riding; the second being brought by the plaintiff's father to recover consequential damages. There were two counts in each declaration, the first in each case respectively being based upon the alleged negligence of the defendant in the operation of his automobile, and the second upon his alleged gross negligence. In each case the jury returned a verdict for the defendant on the first count and for the plaintiff on the second count.

The evidence consisted of the report of the auditor who heard the cases and testimony introduced at the trial. The auditor found, basing his finding solely upon the force of the collision of the automobile with a tree, hereinafter referred to, that the automobile, operated by the defendant, ‘was going probably at 30 miles an hour or thereabouts'; that the road curved ‘gently’ to the left as the automobile was headed; that the plaintiff, who was seated in the rear, was dressed in pajamas and bed room slippers, with her hair in curl papers; that there were some bottles of cider on the floor in the rear of the automobile, one of which broke and the plaintiff screamed; that the ‘driver of the car, the defendant, thereupon turned his head, lost control of his car and it ran into a tree at the right of the road near the curb injuring the occupants.’ The auditor states: ‘The crash came directly after the breaking of the bottle but at what point in the road the car was when the bottle broke I cannot determine from the evidence, but I believe and find that Dawson's lack of attention to the road was momentary, instinctive and not deliberate.’ He found for the defendant in each case.

At the trial the plaintiff, after relating the circumstances of her being in the automobile, testified that ‘Dawson kept going and came near O'Hara's house and * * * [she] looked on the floor and * * * saw the jugs had broken and * * * [she] said ‘Hugh, the jugs have broken,’ and he turned around * * * to look and in a few seconds they hit the tree; that when Dawson turned around and looked at her, he was still looking at her when the crash came'; that ‘when she said, ‘The bottles are busted,’ Dawson turned around and looked at her and put his hand down in back of the seat ‘as if to fix the jug,’ and then the crash came'; that ‘two or three seconds is the time Dawson was looking away and the car was going along without him looking in the direction the car was going; that for two or three seconds...