Dow v. Lipsitz
| Decision Date | 24 May 1933 |
| Citation | 185 N.E. 921,283 Mass. 132 |
| Parties | DOW v. LIPSITZ. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Appellate Division of District Court, Southern District; O. A. Marden, Judge.
Action by Harriet Dow against Benjamin Lipsitz. Judgment in favor of plaintiff. From an order of the Appellate Division dismissing a report of the case, defendant appeals.
Order dismissing report affirmed.
Asa S. Allen and E. F. Cameron, both of Boston, for appellant.
J. M. Morrison and R. N. Daley, Jr., both of Boston, for appellee.
This is an action of tort to recover for personal injuries received by the plaintiff while a passenger in an automobile, owned and operated by the defendant, on April 4, 1931. The declaration is in two counts, the first alleges negligence of the defendant, and that the plaintiff was a passenger for hire; the second count alleges gross negligence of the defendant when the plaintiff was riding in his automobile as a passenger. The original answer contained a general denial, an allegation of contributory negligence, and an allegation that the plaintiff assumed the risk. Thereafter the court allowed an amendment to the answer which recited that at the time of the alleged contract to drive the plaintiff was made the defendant was a minor and that he disaffirms the contract, if any existed between himself and the plaintiff, whereby he agreed to carry her as a passenger for hire.
There was evidence which, if believed, established the following facts: Shortly before 8 o'clock on the evening of April 4, 1931, the defendant with his friend, a son of the plaintiff, went to the home of the plaintiff's daughter. The defendant owed the plaintiff a small sum on account of a bill the plaintiff had paid for the expense of cleaning his clothes. The defendant agreed to take the plaintiff to her home and to do some errands in consideration of which the debt was to be cancelled. He had previously volunteered to take the plaintiff home, but as she protested that it was not fair, the agreement was made for cancellation of the debt. When they started for the plaintiff's home it was dark. The defendant knew that the foot brake of his automobile was not in good condition. It was a pleasant night and there was no other traffic on the road, which was dry and had a macadam surface, twenty feet wide, with gravel shoulders. Before the accident occurred, and while traveling at a speed of about thirty or thirty-five miles an hour, the defendant leaned forward and attempted to adjust the lights, as he testified ‘fooling around with the dashboard,’ in an attempt to get more lights. While doing this he could not see the road ahead of him and the automobile veered from the right side of the road to the left, travelled on that side, went off the road, struck a tree, glanced off, and struck another tree sixteen feet farther along. The first tree was one hundred and twenty-five feet from the place where the automobile went from the right side of the road over to the left. In travelling most of this distance, the defendant did not have his eyes on the road. At the time of the accident the defendant was going from thirty to thirty-five miles an hour; it thus appears that there was no moderation of his previous speed until after the accident occurred. Just before the accident the defendant heard the plaintiff yell, ‘Look out.’ He saw the first tree in front of him and pulled to the right and sideswiped it and then pulled to the left, as he was afraid of turning over, and ran head on into the second tree. As a result of the accident the plaintiff was severely injured. The automobile was so badly damaged that it had to be towed away from the place of the accident, the motor was pushed back, the fan was broken off, the windshield was broken on the side where the plaintiff was sitting, the dashboard was bent and the right spring broken. Pieces were gouged out of both trees as the result of striking them.
The foregoing evidence, if believed, was sufficient to warrant a finding of gross negligence of the defendant. Rog v. Eltis, 269 Mass. 466, ...
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