O'Connell v. McKeown

• Decision Date: 27 February 1930
• Parties: O'CONNELL v. McKEOWN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

270 Mass. 432

170 N.E. 402

O'CONNELL

v.McKEOWN.

Supreme Judicial Court of Massachusetts, Worcester.

Feb. 27, 1930.

Exceptions from Superior Court, Worcester County; Philip J. O'Connell, Judge.

Action by William O'Connell against John B. McKeown. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled.

C. W. Proctor, of Worcester, for plaintiff.

J. J. Mulcahy, of Boston, for defendant.

PIERCE, J.

This is an action of tort for personal injuries sustained by the plaintiff on August 7, 1927, while riding in an automobile as an invited guest of the defendant, who was operating the automobile. At the close of the evidence the defendant filed a motion ‘that the Court direct the Jury to return a verdict for the defendant by order of the Court.’ The motion was denied, the jury returned a verdict for the plaintiff, and the case is before the court on the defendant's exceptions to the denial of his motion. All the evidence material to the issue is contained in the bill of exceptions. At the hearing before this court and in his brief the defendant ‘admitted that the jury could have found that the defendant was guilty of gross negligence,’ citing Learned v. Hawthorne (Mass.) 169 N. E. 557, and McCarron v. Bolduc (Mass.) 169 N. E. 559. ‘The defendant rests his entire case on the proposition that as matter of law the plaintiff was not in the exercise of due care.’

[1] The evidence most favorable to the plaintiff tended to prove that the defendant had been drinking moonshine the night before and the morning before he hired the automobile from a Mr. Grogan; that he did not have a bottle with him nor get any liquor on the trip that he could remember; and that the plaintiff was not drinking that the defendant knew of when the defendant was driving. Grogan testified, in substance, that when the defendant rented the car about 8:30 a. m. on August 7, 1927, he saw no signs of liquor on him, and so far as he could tell from McKeown's actions he was perfectly sober. The plaintiff testified, in usbstance, that he ‘noticed nothing wrong with McKeon's condition’ and that he operated the car all right at a speed of about twenty-five miles an hour along Grove Street through West Boylston until ‘about a mile before the accident’; that on Grove Street, which is on the outskirts of Worcester, they met and talked with police officer O'Leary for about ten minutes, and before then with police officer Crimmins for about fifteen minutes, and that if McKeown had been drinking to any extent O'Leary would have arrested him. These facts, if believed, warranted a finding that the plaintiff was not guilty of negligence in intrusting his safety to the care of McKeown at the time they started out on their trip.

The plaintiff testified, in substance, that about a mile before the accident, which is conceded to have been at about 11 a. m., at the corner of the Shirley road and the State road in Lancaster, Massachusetts, a distance of about seventeen or eighteen miles from Worcester, he ‘noticed that McKeon was swinging the car from one side of the street to the other’; that they were travelling down grade ‘at fifty to fifty-five miles an hour’; that he ‘drew McKeon's attention to it, but he seemed to go faster and kind of laughed’ at him; that he did not slow up but ‘kept on going faster’; that the automobile was ‘swaying from one side, swayed into the gutter, and then he lost control. When they arrived at the corner of the State Road, McKeon put on the brakes * * * he could not stop it and swayed into the State Road and hit a maple tree and then glanced off the maple tree and hit a telegraph pole’ with the result that the automobile was badly smashed and the right side was completely smashed.

The plaintiff further testified that they left Worcester with the intention of going to Clinton through West Boylston; that they did not eventually go to Clinton but went through Lancaster and some country towns with which he was not well acquainted. There was evidence that there was a ‘booze joint’ on the way from Worcester to the place of the accident, but there was no evidence that the automobile stopped there or that either plaintiff or defendant entered that place before or after the accident. There was evidence that the defendant was drunk immediately after the accident, but no evidence that the plaintiff knew of the defendant's condition...