Dinardi v. Herook
Decision Date | 03 April 1952 |
Citation | 328 Mass. 572,105 N.E.2d 197 |
Parties | DINARDI v. HEROOK. |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
G. P. Lordan, Cambridge, for plaintiff.
C. W. Sloane, Boston, for defendant.
Before LUMMUS, RONAN, WILKINS, SPALDING and WILLIAMS, JJ.
In the evening of February 19, 1946, the plaintiff, then a young unmarried woman, was called for by the defendant who was operating his father's automobile. The defendant took the plaintiff, his own brother, and another young woman to a dance hall in Reading, at which they arrived about half past eight. They left the dance hall about eleven o'clock, when a heavy wet snow was falling. After a lunch in Stoneham, they left to drive the plaintiff home. She was a gratuitous passenger, or guest, of the defendant.
When the automobile left Stoneham, the defendant was driving at a speed of thirty-five miles an hour, which speed was maintained until the happening of the accident hereinafter described. It was snowing heavily, and the windshield became covered with snow. On one occasion the defendant got out of the automobile to clear the windshield, and about a mile before arriving at the scene of the accident the plaintiff, who sat next to him on the front seat, asked him to clear it again, but he failed to do so. On several occasions the automobile was on the left side of the road, and the plaintiff told the defendant to get back on the right side of the road. Just before the place of the accident there is a down grade, and there was evidence that the defendant drove along the down grade at a speed of thirty-five miles an hour with his windshield so covered with snow that he had difficulty in seeing. The automobile was approaching a place where the road forked and the defendant was required to take the right fork, passing to the right of a concrete abutment located at the fork. There was evidence that for forty seconds before the accident the defendant truned his head and looked at the plaintiff and not at the road. At thirty-five miles an hour, the automobile would have gone more than two thousand feet in forty seconds. The automobile struck the abutment and all the occupants, including the plaintiff, were hurt.
At the conclusion of the evidence, of which the foregoing is the version most favorable to the plaintiff, the judge ordered a verdict for the defendant, and the plaintiff excepted.
The plaintiff as a guest passenger had to show, in order to recover, that she was injured because of the gross negligence of the defendant. Massaletti v. Fitzroy, 228 Mass. 487, 118 N.E. 168, L.R.A. 1918C, 264, Ann.Cas. 1918B, 1088. Gross negligence is defined and explained in Altman v. Aronson, 231 Mass. 588, 121 N.E. 505, 4 A.L.R. 1185. The difference between ordinary negligence and gross negligence is one of degree. Hastings v. Flaherty, 321 Mass. 368, 370, 73 N.E.2d 601.
In a number of cases momentary inattention on the part of the operator has been held insufficient to warrant a finding of gross negligence. Curley v. Mahan, 288 Mass. 369, 374, 193 N.E. 34 ( ). Adamian v. Messerlian, 292 Mass. 275, 198 N.E. 166 ('momentary'). Folan v. Price, 293 Mass. 76, 199 N.E. 320 ( ). Woods v. Woods, 295 Mass. 238, 3 N.E.2d 837 ( ). Cahalane v. Dennery, 298 Mass. 34, 9 N.E.2d 396 ( ). Beaton v. Dawson, 303 Mass. 429, 21 N.E.2d 965 ( ). Souza v. Mello, 304 Mass. 552, 24 N.E.2d 516 ( ). Passler v. Mowbray, 318 Mass. 231, 61 N.E.2d 120 ( ). But even where the inattention was only momentary, a jury has been allowed to find gross negligence where the inattention occurred in a place of great and immediate danger. Granger v. Lovely, 302 Mass. 504, 19 N.E.2d 798. See also Passler v. Mowbray, 318 Mass. 231, 232, 61 N.E.2d 120.
In the present case the inattention was much more than momentary. The evidence is that it occupied forty seconds, during which the automobile went more than two thousand feet. In a number of cases such protracted inattention, and even less than that, has been held to warrant a finding of gross negligence. Rog v. Eltis, 269 Mass. 466, 169 N.E. 43 ( ). Kirby v. Keating, 271 Mass. 390, 171 N.E. 671 ( ). Meeney v. Doyle, 276 Mass. 218, 177 N.E. 6 ( ). Green v. Hoffarth, 277 Mass. 508, 516, 178 N.E. 828 ( ). Bruce v. Johnson, 277 Mass. 273, 178 N.E. 518 ( ). Dow v. Lipsitz, 283 Mass. 132, 185 N.E. 921 ( ). Crowley v. Fisher, 284 Mass. 205, 187 N.E. 608 ( ). Horneman v. Brown, 286 Mass. 65, 190 N.E. 735 ( ). Copeland v. Russell, 290 Mass. 542, 195 N.E. 541 ( ). Cycz v. Dugal, 295 Mass. 417, 3 N.E.2d 1011 ( ). O'Toole v. Magoon, 295 Mass. 527, 4 N.E.2d 357 ( ). Smith v. Axtman, 296 Mass. 512, 6 N.E.2d 809 ( ). Koufman v. Feinberg, 298 Mass. 270, 10 N.E.2d 91 ( ). Picarello v. Rodakis, 299 Mass. 33, 11 N.E.2d 470 ( ). Colby v. Clough, 301 Mass. 52, 16 N.E.2d 30 ( ). Haggerty v. Sullivan, 301 Mass. 302, 17 N.E.2d 154 ( ). McGaffigan v. Kennedy, 302 Mass. 12, 18 N.E.2d 344 (...
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