Doherty v. Spano

• Decision Date: 02 January 1958
• Citation: 336 Mass. 576,146 N.E.2d 671
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 671

146 N.E.2d 671

336 Mass. 576

Patricia DOHERTY et al. ¹ v. John SPANO.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 4, 1957.

Decided Jan. 2, 1958.

Frank M. Lewis, Boston, for defendant Spano.

John J. O'Neill, Boston, for plaintiffs.

Before WILKINS, C. J., and RONAN, SPALDING, WHITTEMORE and CUTTER, JJ.

SPALDING, Justice.

The question for decision is whether the evidence, hereinafter summarized, warranted a finding of gross negligence.

At some time before midnight on February 27, 1955, Patricia Doherty, hereinafter called the plaintiff, aged seventeen, was in a restaurant in Revere. Leaving the restaurant around 12:15 A.M., she met the defendant who asked her if she would like a ride home in his automobile. The plaintiff, who knew the defendant and had ridden with him before, accepted the invitation and got into the automobile. The defendant 'immediately started off and went around a circle.' 'The wheels screeched and the plaintiff went over to one side.' The defendant 'went around the circle at fifty to fifty-five miles per hour and went past * * * the road that would take * * * her home. She protested that she wanted to go home and the defendant suggested that it would be nice to have a ride.' The plaintiff 'protested several times for the defendant to take her home' and told him to slow down because he was going too fast. In reply the defendant said 'All right,' but his 'speed continued at fifty to fifty-five miles per hour and did not decrease nor increase.' The 'defendant put his right arm on the back of the seat in back of the plaintiff and drove with one hand.' He 'did not take his arm off the back of the seat during the entire ride.' The defendant 'took his eyes off the road on four or five occasions to look at the plaintiff and reply to her.' '[F]rom the time the automobile left the circle * * * [it] swerved to the right then the defendant straightened the car and after that the accident occurred.' The automobile came in contact with a hydrant at a distance of less than a mile from the starting point.

After the plaintiffs had introduced the foregoing evidence the defendant rested and presented a motion for a directed verdict. The motion was denied, subject to the defendant's exception, and the case was submitted to the jury who returned verdicts for the plaintiffs.

There was no error.

Questions as to the sort of conduct that will or will not warrant a finding of gross negligence have been before this court so often that an extended discussion or elaborate citation of precedents is unnecessary. 'It is seldom that any one factor or any one precedent will be wholly decisive. The matter is likely to remain largely one of opinion in each case.' Quinlivan v. Taylor, 298 Mass. 138, 140, 10 N.E.2d 96. Some of the indicia of gross negligence are set forth in the following cases. Altman v. Aronson, 231 Mass. 588, 121 N.E. 505, 4 A.L.R. 1185; Lynch v....