Cahalane v. Dennery

• Decision Date: 29 June 1937
• Citation: 9 N.E.2d 396,298 Mass. 34
• Parties: MARY CAHALANE v. WALDO S. DENNERY. JOHN CAHALANE v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

298 Mass. 34

9 N.E.2d 396

MARY CAHALANE v. WALDO S. DENNERY. JOHN CAHALANE v. SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

June 29, 1937

May 13, 1937.

Present: RUGG, C.

J., CROSBY DONAHUE, LUMMUS, & QUA, JJ.

Negligence, Gross Motor vehicle, In use of way.

A finding of gross negligence of the operator of an automobile was not warranted by evidence that he so operated it as to require a forcible application of the brakes at an intersection, knowing that the brakes were so out of repair that such an application would cause them to "grab" and stop the automobile abruptly.

An automobile operator's turning to hand something to one riding on the back seat is not evidence of gross negligence if it involves no inattention to his driving.

TWO ACTIONS OF TORT. Writs in the Municipal Court of City of Boston dated August 31, 1935.

Upon removal to the Superior Court, the actions were tried before Morton, J.

B. Goldman, for the plaintiffs.

J. Levensohn, (B.

A. Sugarman with him,) for the defendant.

CROSBY, J. The plaintiff in the first action seeks to recover for personal injuries sustained while she was a passenger in the automobile of the defendant. In the second action her father seeks to recover consequential damages. The answers in both cases contain a general denial, an allegation of contributory negligence, and a denial of agency. The last-named defence was waived at the trial. The trial judge allowed the defendant's motion for a directed verdict in each action and reported the cases to this court. If the direction of the verdicts was correct, judgments are to be entered for the defendant; if not, there should be a new trial. The verdicts were directed on the opening statement of counsel for the plaintiffs, in which was incorporated an auditor's report. A verdict may be so directed in a situation like the present where the case appears to have been fully stated by counsel. Mulvaney v. Worcester, 293 Mass. 32 , 33 and cases cited. The question is whether, assuming all facts stated in the opening to be true, the plaintiffs were entitled to go to the jury. Murphy v. Boston & Maine Railroad, 216 Mass. 178 , 179.

It appears from the opening that Mary Cahalane (herein referred to as the plaintiff) was invited to ride home from work with the defendant. She rode in the back seat beside his sister-in-law. In consequence of an abrupt stop made by the defendant, the plaintiff was thrown over the front seat against the windshield and injured. The defendant was driving without glasses in violation of a restriction in his license. He had the brakes relined a short time before the accident and "the brakes had been what might be termed grabbing or catching up too quick so that when you put the brake on it would either throw the car around or give it a toss. In other words the brakes were not in good repair or good working order." The defendant was driving between thirty and thirty-five miles an hour in a thickly settled section, and was approaching a blind intersection. At the request of his sister-in-law in the back seat, he turned around and handed her a match. At the same time a car came out of the intersecting street. The defendant applied his brakes and the accident occurred. There is no statement in the record of any collision.

The auditor's report adds nothing to the foregoing recital. He found that the defendant might reasonably expect the car to stop suddenly if the...