Donahue v. Kelley

• Citation: 29 N.E.2d 10,306 Mass. 511
• Parties: MARY E. DONAHUE v. JOHN L. KELLEY.
• Decision Date: 09 September 1940
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

306 Mass. 511

29 N.E.2d 10

MARY E. DONAHUE v. JOHN L. KELLEY.

Supreme Judicial Court of Massachusetts, Middlesex.

September 9, 1940

April 3, 1940.

Present: FIELD, C.

J., DONAHUE LUMMUS, QUA, & RONAN, JJ.

Negligence, Guest Gratuitous undertaking, Motor vehicle.

Upon evidence that the plaintiff was struck by an automobile by reason of the defendant's simple negligence while moving it from its parking place to the place where the plaintiff was waiting on the sidewalk to enter it for gratuitous transportation to his home, the plaintiff could not recover.

TORT. Writ in the Third District Court of Eastern Middlesex dated March 14 1938.

Upon removal to the Superior Court, the action was tried before Dillon, J. C. H Loring, for the plaintiff.

J. W. White, (A.

F. Bickford with him,) for the defendant.

DONAHUE, J. The plaintiff brought this action to recover damages for injuries received when she was struck by an automobile operated by the defendant. The case was tried before a jury in the Superior Court on the report of an auditor and testimony of the plaintiff. In response to a question put by the judge, the jury stated that it found the relationship of "host and guest" between the defendant and the plaintiff did not exist at the time the plaintiff was injured. The judge reserved leave under G.L. (Ter. Ed.) c. 231, Section 120, and later allowed a motion of the defendant for the entry of a verdict for the defendant. The only exception here presented is to the allowance of this motion.

The material facts were not in dispute. They are here summarized. The plaintiff a resident of Medford, accompanied the defendant, a resident of Winchester, in the defendant's automobile, to visit a mutual friend who lived in Woburn. Upon arrival at the friend's home the defendant parked his automobile on the friend's premises in a driveway which ran at a right angle to the street. The auditor found that at the conclusion of the visit the plaintiff and the defendant "both intended that the plaintiff should be driven by the defendant, in the defendant's automobile, from the house in which they were visiting to her home in Medford; the defendant intending to proceed to his home in Winchester after leaving her at her home." The plaintiff testified "that when the call was over she and the defendant came out of the friend's house with the sole purpose in mind of going home; that the defendant was going to take her home; that when the defendant went out to the car she knew that he was doing this for the very purpose of getting his car to take her home." The defendant crossed the friend's lawn to the driveway to enter his automobile and the plaintiff went down the front walk and along the sidewalk to its intersection with the driveway. While standing there the plaintiff signalled to the defendant that the street was clear so that he might safely back out into the street. The defendant then backed the automobile past the place where the plaintiff was standing and into the street, at an angle, preparatory to driving the automobile forward and stopping it with its right front door opposite the plaintiff so that she might enter. He drove his vehicle forward but realized that he had not stopped it at such an angle that in going forward it would pass clear of a tree growing at; the outer edge of the sidewalk. In attempting to put his foot on the brake pedal and stop the forward progress of the automobile, his foot struck the accelerator. This caused the vehicle "to lurch forward" and strike the tree and the plaintiff. The plaintiff testified that when the accident happened the defendant "was bringing his car forward so that the right hand side, or the side upon which she was going to sit, would...