Carvalho v. Oliveria
| Decision Date | 29 February 1940 |
| Citation | 305 Mass. 304,25 N.E.2d 764 |
| Parties | CARVALHO v. OLIVERIA (two cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Bristol County; Hurley, Judge.
Actions by Frank A. Carvalho, and by Margaret Carvalho, against Louis Oliveria, for personal injuries sustained by plaintiffs while passengers in an automobile driven by defendant. Verdicts in favor of plaintiffs for $3,240 and $1,750 respectively. On defendant's exception to the denial of defendant's motion that a verdict be directed in his favor in each case.
Exception overruled in each case.H. W. Radovsky and C. Soforenko, both of Fall River, for plaintiffs.
F. E. Smith, of Taunton, for defendant.
These are actions for personal injuries sustained by the plaintiffs, who are husband and wife, while passengers in an automobile driven by the defendant at Swansea on or about September 2, 1935. The plaintiff in the first action is the brother in law of the defendant. The plaintiff in the second action is the sister of the defendant. The plaintiffs, the defendant, and the father and mother of the plaintiff Margaret Carvalho and of the defendant were all riding together in the automobile, which belonged to the father. The father was killed and the mother was injured. See Oliveria v. Oliveria, Mass., 25 N.E.2d 766, decided this day. In each case the only exception is to the denial of the defendant's motion that a verdict be directed in his favor.
The declarations in the present actions are based upon gross negligence of the defendant. All parties take the position that in order to recover the plaintiffs were bound to show gross negligence on the part of the defendant. We therefore assume without further discussion that the driving by the defendant was a purely voluntary undertaking on his part, and that in order to support the verdicts the record must disclose evidence of his gross negligence. Massaletti v. Fitzroy, 228 Mass. 487, 118 N.E. 168, L.R.A.1918C, 264, Ann.Cas.1918B, 1088;Ruel v. Langelier, Mass., 12 N.E.2d 735.
The record does disclose evidence of the defendant's gross negligence. There was evidence tending to show these facts: The parties had left White Plains, New York, ‘around’ nine o'clock in the evening, intending to drive to Fall River. On the way three or four stops were made for food and refreshment. At the point of the accident the four-lane highway ‘took a wide curve to the left.’ The automobile ran off the right side of the road and hit a pole located about three feet to the right of the ‘first’ lane in which the automobile had been travelling. There was a wheel mark in the dirt shoulder about ninty-one feet long. The speed was about...
To continue reading
Request your trial
-
Parchia v. Parchia
...810, dealt with this problem and summarized the holdings of the applicable Massachusetts cases as follows: 'In Carvalho v. Oliveria, 305 Mass. 304, 305-306, 25 N.E.2d 764, 765, it was said, 'Without undertaking to lay down a rule that falling asleep is always evidence of gross negligence, a......
-
Keller v. DeLong
...44 et seq; Bushnell v. Bushnell, 103 Conn. 583, 131 A. 432, 44 A.L.R. 785; Bernosky v. Greff, 350 Pa. 59, 38 A.2d 35; Carvalho v. Oliveria, 305 Mass. 304, 25 N.E.2d 764. Cf. Theisen v. Milwaukee Automobile Mut. Ins. Co., 18 Wis.2d 91, 118 N.W.2d 140, 119 N.W.2d In State v. Beauvais, 102 N.H......
-
Flynn v. Hurley
...would warrant a finding of gross negligence. Later cases, however, have stated the rule less stringently. In Carvalho v. Oliveria, 305 Mass. 304, 305-306, 25 N.E.2d 764, 765, it was said, 'Without undertaking to lay down a rule that falling asleep is always evidence of gross negligence, at ......
-
State v. Valyou, 05-571.
...without making the necessary effort fully to arouse himself can be found to be grossly negligent." Id. (quoting Carvalho v. Oliveria, 305 Mass. 304, 25 N.E.2d 764, 765 (1940)). The factual difference between Flynn and Carvalho is enlightening. In Flynn, the court found no evidence that the ......