Colby v. Clough

• Citation: 16 N.E.2d 30,301 Mass. 52
• Parties: PERSIS M. COLBY v. ESTHER CLOUGH.
• Decision Date: 30 June 1938
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

301 Mass. 52

16 N.E.2d 30

PERSIS M. COLBY v. ESTHER CLOUGH.

Supreme Judicial Court of Massachusetts, Middlesex.

June 30, 1938

May 4, 1938.

Present: LUMMUS QUA, DOLAN, & COX, JJ.

Negligence, Gross Motor vehicle, In use of way.

A finding that the operator of an automobile was grossly negligent toward a guest was warranted by evidence that he drove at a speed of forty-five miles per hour into all intersection with a public way entering from his right without looking to his right or heeding a warning cry of his guest and thus failed to see another automobile which already had entered the intersection, and that, when he did observe the other automobile, he turned his automobile toward the left to avoid it, continued at accelerated speed without looking in that direction and ran into a tree.

TORT. Writ in the First District Court of Southern Middlesex dated August 28 1936.

There was a finding by Simoneau, J., for the plaintiff in the sum of $7,500.

John J. Sullivan (W. I. Badger with him,) for the defendant. J. W. Tuttle, for the plaintiff.

DOLAN, J. This is an action of tort in which the plaintiff seeks to recover for personal injuries sustained by her on September 19, 1935 while riding in an automobile operated by the defendant. The declaration is in two counts, the first alleging gross negligence, and the second negligence. The case was tried before a judge of a district court, who found for the plaintiff upon the first count and reported the case to the Appellate Division for the Northern District. It now comes before us on an appeal from an order of the Appellate Division dismissing the report. The only question for determination is whether the judge erred in refusing to give the defendant's request for a ruling that "The evidence does not warrant a finding that the defendant at the time of the accident was grossly negligent in the operation of her automobile."

The evidence in its aspect most favorable to the plaintiff would warrant the finding of the following facts: On September 19, 1935, the plaintiff was riding as a guest in an automobile operated by the defendant but owned by the latter's mother. The plaintiff was seated on the rear seat of the vehicle; the defendant and her husband were seated on the front seat. The weather was fair, and the road was dry. The defendant was driving the vehicle in a westerly direction on Montwaite Avenue in Framingham, at a speed of forty to forty-five miles an hour. The vehicle approached the intersection of that avenue and Franklin Street, which runs approximately north and south. Although familiar with this intersection the defendant continued at undiminished speed. When the vehicle operated by the defendant was about a car's length from the intersection, the plaintiff observed an automobile driven by one Aubey about to enter the intersection from the right at a speed of about eight miles an hour. The plaintiff cried, "My God, look out." The defendant did not look to the right but entered the intersection at the rate of speed already described. When at about the center of the intersecting ways, the defendant looked to the right and saw Aubey's vehicle in which he was driving with his wife and "his little grandchild." Although intending to cross the intersection and go down Franklin Street, Aubey, fearing that the "defendant's car would hit him" turned to the right down Montwaite Avenue leaving the path to the left clear for the "defendant's car." The defendant, however, continued to look to the right at Aubey's vehicle but swung the automobile operated by her to the left, without looking in that direction; it was heading directly for a tree "at or near the southwesterly corner of the intersection," and the plaintiff "screamed." The defendant then looked to the left, but at that time "her car was almost upon the tree." Its speed increased, it struck the tree and the plaintiff was injured. Immediately after the accident the defendant said to Aubey's wife, "Thank God I didn't hit you or that dear baby, I don't remember what happened, I stepped on them [the brakes] but I guess . . . [they] didn't hold."

Later she stated to the plaintiff that she "was . . . afraid . . . [she] would hit the child" and that she "thought ....