Curley v. Mahan
| Citation | 288 Mass. 369,193 N.E. 34 |
| Parties | CURLEY v. MAHAN. CURLEY v. STAWIECKI. |
| Decision Date | 26 November 1934 |
| Court | United States State Supreme Judicial Court of Massachusetts |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Worcester County; Donnelly, Judge.
Two actions of tort by Thomas E. Curley against Thomas Mahan and against Alexander Stawiecki, consolidated and tried together before a judge of the superior court. Verdict was ordered entered for the defendant in the first action after a verdict for the plaintiff in the sum of $7,625 was recorded with leave reserved, and there was verdict for the plaintiff in the second action in the sum of $7,625, and the plaintiff in the first action and the defendant in the second action bring exceptions.
Exceptions overruled.
H. Zarrow and M. N. Abodeely, both of Worcester, for plaintiff.
J. J. MacCarthy, of Worcester, for defendants.
This is a joint bill of exceptions of Thomas E. Curley the plaintiff in this case against the defendant Thomas Mahan, and of the defendant Alexander Stawiecki in the case of Curley against Stawiecki, consolidated by agreement of all parties in interest.
The actions are in tort. They arise out of personal injuries received as the result of an automobile accident that occurred on Jury 9, 1932, about 8 p. m. on a public way in the town of Webster, which is the main road between Southbridge and Webster. The accident involved a collision between a motorcycle, owned and operated by the defendant Mahan, which was proceeding easterly toward Webster, and an automobile operated by the defendant Stawiecki, which was proceeding in an opposite direction toward Southbridge. The motorcycle was of the tandem style, with two wheels, and a seat directly behind the operator, on which seat the plaintiff was riding at the time of the accident. At the place where the collision occurred the road is constructed of macadam at its intersection with a dirt road on the south known as the Wilkinsonville road and a macadam road on the north known as the Dudley road. At the close of the evidence the trial judge denied a motion by the defendant for a directed verdict in each case. Each defendant duly excepted. The cases were then submitted to the jury which returned a verdict for the plaintiff in each case. The trial judge before entry of the verdict in the Mahan case reserved leave, with the assent of the jury, to enter a verdict for the defendant. The defendant Mahan presented a motion for a verdict in accordance with leave reserved which was allowed by the judge. To the allowance of this motion the plaintiff duly excepted.
In the case against Mahan the plaintiff sought to recover on the ground of gross negligence. In the case against Stawiecki the plaintiff sought to recover on the ground of ordinary negligence. All the evidence material to the issues raised by the bill of exceptions is contained in the record. The facts most favorable to the plaintiff as they might have been found by the jury, are in substance as follows: On the evening of July 9, 1932, the plaintiff, while in Charlton City, Massachusetts, was invited by the defendant Mahan to ride with him to Webster on Mahan's motorcycle. It was about 7:15 p. m. and raining. The plaintiff mounted on the tandem seat and Mahan drove the motorcycle toward Southbridge. From Charlton to Southbridge Mahan drove the motorcycle at a speed of forty-five to fity miles an hour, although at times he slowed down to fifteen or twenty miles an hour. In Southbridge Mahan stopped to talk with some girls for five minutes. After that lapse of time Mahan proceeded in the direction of Webster at a speed of forty to forty-five miles an hour. They came to the foot of a hill just before the accident and there Mahan increased the speed to fifty or fifty-five miles an hour. The hill was about one thousand feet long with an uphill grade of six per cent. in the direction in which the motorcycle was proceeding. At the crest of the hill there was a curve to the left. At the top of the hill there are intersecting roads, one on the northerly side, known as the Dudley road, the other on the southerly side of the main road leading to Wilkinsonville. Coming uphill the view is obstructed by a knoll on the northerly side of the road and by the curve to the left. A white line six inches wide is painted on the surface of the main road, indicating the center of the road. The jury viewed the scene of the accident. On the way from Charlton to Southbridge the plaintiff told Mahan that he was driving too fast and that he was scared. This was the plaintiff's first ride on a motorcycle. After leaving Southbridge as the defendant speeded up the hill at the rate of fifty to fifty-five miles an hour the plaintiff said to Mahan that ‘he was afraid,’ and Mahan replied there was ‘no need of being afraid’ and continued on. Near the top of the hill, just as the motorcycle was rounding the curve, it was travelling at a speed of fifty-five to sixty miles an hour. At the top of the hill the plaintiff saw the automobile driven by the defendant Stawiecki about three hundred feet away. The motorcycle was then about one hundred and fifty feet west of the intersecting roads and the automobile about one hundred and fifty feet east of that intersection. When the plaintiff saw the automobile he told Mahan ‘to look out, that there was a car in front of him.’ Mahan turned his head to the left for a ‘very short period, 4 or 5 seconds,’ and said ‘Don't be afraid,’ then he ‘turned right around and shut off the gas and applied the brake.’ The automobile was on the left side of the road when first seen by the plaintiff, then it was driven to the right side, and then, when it was within fifty feet of the motorcycle, it started on an angle and ‘shot right across the white line again.’ The collision occurred on the automobile's left side of the road at a point seventy to seventy-five feet east of the intersection of the roads above described, on the Webster side. At the moment of the collision the motorcycle was travelling thirty to forty miles an hour and the automobile was going at the rate of fifteen to...
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