Crowley v. Fisher

• Decision Date: 25 October 1933
• Citation: 187 N.E. 608,284 Mass. 205
• Parties: CROWLEY v. FISHER (TWO CASES).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

284 Mass. 205

187 N.E. 608

CROWLEY

v.FISHER (TWO CASES).

Supreme Judicial Court of Massachusetts, Hampshire.

Oct. 25, 1933.

Exceptions from Superior Court, Hampshire County; J. M. Gibbs, Judge.

Actions of tort by Arvine Crowley, p. p. a., and by Marion A. Crowley, against Clarence R. Fisher, which were tried together. Verdict for plaintiff in the first action for $300 and for $2,000 in the second action. On defendant's substitute bill of exceptions.

Exceptions overruled.

D. H. Keedy, of Springfield, for plaintiffs.

R. H. Cook, of Northampton, for defendant.

FIELD, Justice.

These two actions of tort, tried together, were brought by a minor and her mother to recover compensation for personal injuries sustained by them when riding in an automobile operated by the defendant. The mother seeks also to recover the medical expenses of herself and her daughter. In each case the defendant moved for a directed verdict on the ground that the plaintiff failed to establish gross negligence. These motions were denied, the defendant excepted, and there were verdicts for the plaintiffs.

It is not contended that the plaintiffs were in any more favorable position than that of guests of the defendant. Consequently proof of gross negligence on his part was essential to recovery. Balian v. Ogassin, 277 Mass. 525, 528, 529, 179 N. E. 232, 78 A. L. R. 1021;Thibeault v. Poole (Mass.) 186 N. E. 632. Whether the evidence warranted a finding of gross negligence is the only question presented for our consideration.

A finding of gross negligence was warranted. The evidence was conflicting and there were inconsistencies in the testimony of the adult plaintiff who gave the most detailed account of the way the accident happened. See Coyle v. Worcester Consolidated Street R. Co., 273 Mass. 475-477, 173 N. E. 586. But, in its aspect most favorable to the plaintiffs, the evidence tended to show that the defendant, operating an automobile in which the plaintiffs were riding, at a speed of between twenty-five to thirty miles an hour, on a gravel road with, as the defendant knew, a ‘little hump in the middle’ and ‘beaten tracks where the automobiles were supposed to go,’ ‘crouched and looked up through the windshield,’ taking his eyes off the road and looking up toward the sky at a passing aircraft, and continued for seven or eight seconds to look at the aircraft and to talk about it with an occupant of the automobile-not one of the plaintiffs-until the automobile ran out of the beaten tracks and began to zigzag, and the defendant lost control of it, and that the automobile continued to zigzag for a distance of two hundred feet, increasing its speed to fifty or sixty miles an hour, until it struck and broke off a telephone pole six feet...