Burke v. Cook
| Decision Date | 30 November 1923 |
| Citation | 141 N.E. 585,246 Mass. 518 |
| Parties | BURKE v. COOK. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Barnstable County; William Cushing Wait, Judge.
Action of tort by James M. Burke against John A. Cook, to recover for injuries suffered while riding in defendant's automobile as a guest. Verdict for plaintiff, and defendant brings exceptions. Exceptions sustained, and judgment ordered for defendant.
W. Welsh, of Provincetown, for plaintiff,
C. C. Campbell, of Provincetown, for defendant.
The plaintiff, who was injured while riding in the fall of 1920 as a guest in a seven-passenger automobile owned and operated by the defendant, bases liability on gross negligence.
The plaintiff sat at the left end of the rear seat and had a seat mate; one person rode beside the driver, and there were two on intermediate seats. The journey as planned was to be from Provincetown to New Bedford and was for pleasure. ‘* * * Not a word was spoken [at any time] to the defendant by way of complaint as to his driving, management, or rate of speed, by any person in the car.’ The motor car crossed the bridge over the Cape Cod Canal ‘going very slowly, this being at a place only a short distance from the scene of the accident.’ The way where the accident happened was a straight macadam road where there was unobstructed vision for a long distance ahead. The only other traffic was a vehicle hereinafter referred to; ‘there were no people, no intersecting ways, and there were bushes and trees on both sides of the road.’
The testimony considered in the aspect most favorable to the plaintiff was sufficient to justify a finding that the accident happened as now described. After crossing the bridge the speed of the automobile increased until a team or truck was met or passed; soon after this, a very few seconds before the accident and while the car, as one witness expressed it, was ‘going fast,’ its speed, according to others, being at the rate of 35 miles an hour, and just as the other vehicle was passed, there was a ‘thump, thump, thump,’ from the right rear wheel, and in a very short time, variously described as a second or two or two or three seconds, the automobile went up in the air and, turning over, struck on its top, making a mark in the hardened road as of a car sliding on its top for three or four times its length. ‘Just before the accident the car seemed to be steering to the right and * * * the defendant turned his wheel to the left, and did it quickly, and the car turned over.’ The noise described indicated that there had been some trouble in the right rear wheel or its shoe, and after the accident one of the rear tires had a long cut.
[1] The evidence that one witness said that the car was going as fast as 63 miles an hour after leaving the bridge was admissible to contradict that testimony which indicated a considerably lower rate of speed, and it cannot be considered for any other purpose.
The defendant by written motion requested the direction of a verdict in his favor for the stated reason that there was no evidence of gross negligence, and excepted to the failure to direct such a verdict. The case was submitted to the jury without any exception to the instructions actually given, and the plaintiff had a verdict.
[2][3] Clearly, if this action can be maintained by proof of what is sometimes called ordinary negligence for the purpose of distinguishing it from gross negligence, there was a jury issue. The rate of speed, the quick turning of the automobile and its overturn, together were sufficient to justify a conclusion founded on the failure to fulfill that duty. But confessedly the plaintiff cannot get on unless the evidence was sufficient to uphold a verdict based on gross negligence. Massaletti v. Fitzroy, 228 Mass. 487, 118 N. E. 168, L. R. A. 1918C, 264, Ann. Cas. 1918B, 1088;O'Leary v. Fash, 245 Mass. 123, and cases collected at page 124, 140 N. E. 282. The governing principles as to what is necessary to constitute gross negligence have recently been fully considered in Altman v. Aronson, 231 Mass. 588, 121 N. E. 505, 4 A. L. R. 1185, and do not require restatement. In that case the aggravated character of such negligence is declared. It is said (231 Mass. at page 591, 121 N. E. 506 ):
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