Di Donato v. Renzi

• Decision Date: 02 July 1936
• Citation: 3 N.E.2d 239,295 Mass. 113
• Parties: DI DONATO v. RENZI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

295 Mass. 113

3 N.E.2d 239

DI DONATO v. RENZI.

Supreme Judicial Court of Massachusetts, Essex.

July 2, 1936

Exceptions from Superior Court, Essex County; Williams, Judge.

Action of tort by Mary E. Di Donato, by next friend, against Marguerite Renzi. From a judgment in favor of plaintiff in accordance with the report of an auditor by a single judge in the superior court, defendant brings exceptions and appeals.

Exceptions overruled.

W. B Welch, of Boston, for plaintiff.

W. W Jump, of Boston for defendant.

CROSBY, Justice.

This is an action of tort to recover for personal injuries, arising out of an automobile accident that occurred on October 24 1935, on a public way at the intersection of Cabot Street, Stone Street and Davis Street in the city of Beverly in this commonwealth. The plaintiff at the time of the accident was the occupant of an automobile owned and operated by the defendant. The plaintiff's declaration is in three counts; the first alleges ‘ gross negligence,’ the second ‘ ordinary’ negligence, and the third, a violation of G.L.(Ter.Ed.) c. 89, §§ 1 and 4. The defendant's answer is a general denial, and an allegation that the plaintiff was not in the exercise of due care. The action was tried before an auditor; his findings of fact were not final. He furnished the parties with copies of his report and notified them of the time and place when and where they might suggest such alterations as they might deem proper. The parties did not desire to be heard on the draft report and it was filed. Neither party within ten days after the filing of the report filed a statement insisting upon a jury trial or reserved the right to introduce further evidence under Rule 88 of the Superior Court (1932). The case was heard by a judge of the Superior Court without a jury upon the plaintiff's motion that ‘ Judgment be entered for the plaintiff according to the Auditor's Report.'

The auditor found that the defendant used her automobile for pleasure and also as a means of transportation between her home in Beverly and her place of employment in Salem; that the plaintiff and several other employees at the same place, who lived in Beverly, were accustomed to ride with her daily to and from their common place of employment; that nothing was ever paid by the plaintiff or others or sought for such transportation by the defendant; and that the plaintiff was on each occasion the guest of the defendant.

The auditor further found as follows: ‘ Cabot Street in Beverly runs approximately from north to south. At the point where the accident herein occurred, Stone Street enters Cabot Street at right angles from the east. At the same point Davis Street enters Cabot Street from the southeast in such a manner that the easterly line of Davis Street forms an angle slightly acute with the southerly side line of Stone Street and the westerly side line of Davis Street forms an angle slightly acute with the westerly side line of Cabot Street.’ On October 24, 1935, ‘ one Carpenter, driving a motor vehicle on his own right hand side of the way along Stone Street in a westerly direction entered Cabot Street at approximately 6.40 A. M. at the rate of 10 miles an hour. As he entered he saw the car of the defendant 40 feet distant, approaching from the north, and in order to permit it to pass he immediately brought * * * [his] motor vehicle * * * to a standstill at a point where a space of but three feet intervened between the rear bumper of his car and the easterly curb of Cabot Street extended south across the westerly head of Stone Street. In this position the forward end of his car did not extend to the centre line of the...