Flynn v. Hurley

• Decision Date: 04 February 1955
• Citation: 332 Mass. 182,124 N.E.2d 810
• Parties: Lillian FLYNN v. Edward J. HURLEY. Edward J. HURLEY v. TOWN OF FRAMINGHAM.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 810

124 N.E.2d 810

332 Mass. 182

Lillian FLYNN v. Edward J. HURLEY.

Edward J. HURLEY v. TOWN OF FRAMINGHAM.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Nov. 5, 1954.

Decided Feb. 4, 1955.

Monto Rosenthal, Boston, for Lillian Flynn.

Christopher W. Sloane, Boston, for Edward J. Hurley.

Dewey C. Kadra & E. John Ferrazzi, Framingham, Town Counsel, for Town of Framingham.

Before QUA, C. J., and RONAN, WILKINS, SPALDING and WILLIAMS, JJ.

SPALDING, Justice.

These are two actions of tort. In one the plaintiff Flynn seeks to recover for personal injuries sustained by her on May 9, 1948, when an automobile in which she was a passenger and which was being operated by the defendant Edward J. Hurley struck an obstruction on Waverly Street, Framingham and collided with a pole. The other action is brought by Edward J. Hurley against the town of Framingham to recover for personal injuries and property damage. The declaration of the plaintiff Flynn contains four counts but the only one now relied on is the second, which alleges gross negligence. The declaration of the plaintiff Hurley in the action against the town contains four counts. Counts 1 and 2 are brought under G.L. (Ter.Ed.) c. 84, §§ 1 and 15, and counts 3 and 4 are based on the common law. In each action the judge directed a verdict for the defendant on all counts and the plaintiffs' exceptions to this action bring the cases here.

We summarize the evidence as follows:

On May 6, 1948, the sewer department of the town of Framingham made an excavation in Waverly Street of that town for the purpose of installing a sewer line from the main line in the center of the street into a building of the Waverly Glass & Mirror Company. The owner of the building paid the town for this work. Waverly Street, which is a public way, is straight and level and at the place of the accident it is 47 feet wide from curb to curb. The excavation made by the sewer department started at the northerly curb in front of the mirror company's building and extended 27 feet toward the middle of the road; it was about 4 feet wide and 5 feet deep, and sand and gravel were piled on both sides of it to a height of about 3 feet, forming an obstruction or mound. This mound of earth extended about two thirds of the way across the road.

About midnight on May 9, 1948, the plaintiff Flynn, who will hereinafter be called the plaintiff, was riding as a passenger in the front seat of an automobile owned and operated by Edward J. Hurley, who, because he is both a plaintiff and a defendant in these actions, will hereinafter be called Hurley. Hurley drove down to Framingham Center to let off another passenger and while going there he at times drove 50 miles an hour and at other times 40. The plaintiff asked him to slow down and he did so for a little while and then speeded up again. After letting the other passenger off he drove down to Framingham, proceeding on Union Avenue to Concord Street. He then turned from Concord Street into Waverly Street and as he came down Waverly Street his speed was between 40 and 50 miles per hour. The plaintiff asked him what the hurry was and he slowed down to about 30 but then speeded up again to 50. The plaintiff then saw red lights across the road about a quarter of a mile away. The road at that point 'is a straight-away' and she continued to notice the lights as they went along. There were a dozen or more lights and they were on horses along the side of a ditch. As Hurley approached the lights he did not steer off to the right of the road. He 'passed two or three cars' and 'stayed on the left' side. When 25 feet away from the lights the plaintiff looked over to speak to Hurley and saw that he was asleep. She screamed, and 'they went into the ditch.'

A police officer, who went to the scene of the accident about 12:29 in the morning of May 9, 1948, testified as follows: Waverly Street was well lighted. There were five wooden horses, three on the easterly side and two on the westerly side. Each horse had two red kerosene lanterns and these were lighted. There was a broken horse in the ditch and another out in the street. Hurley's automobile was at a bus pole 160 feet away. Its front was practically demolished and the bumper 'with a lantern wrapped around it' was up against the pole. The distance from the excavation to the southerly curb was 18 feet and there were skid marks going 160 feet from the southerly curb to the bus pole.

Hurley testified that he could not recall any traffic along Waverly Street from the time he turned the corner up to the time of the accident; that at no time did he turn to the left of the highway to pass any vehicles; that Waverly Street was dark; that as he approached the place where the accident happened he observed two dim red lights when he 'got right on top of it'; that his automobile could have stopped within 50 feet, but 'he didn't have a chance to'; that he believed he struck a mound of sand; that 'if there were lights there, there would be nothing to prevent his seeing a mound three feet high'; and that when he struck the mound of sand the operating apparatus under the steering wheel went out of control and the automobile collided with a pole and he became unconscious. Hurley denied that he had fallen asleep at any time prior to the accident.

1. We shall consider first the action brought by the plaintiff Flynn against Hurley. Since the plaintiff was riding with Hurley as his guest she could recover only on proof of gross negligence. Massaletti v. Fitzroy, 228 Mass. 487, 118 N.E. 168, L.R.A.1918C, 264. The evidence mainly relied on to establish such negligence is the fact that the plaintiff, when the automobile was about 25 feet from the excavation, observed that Hurley was asleep. Relying on the case of Blood v. Adams, 269 Mass. 480, 169 N.E. 412, the plaintiff argues that this was sufficient to warrant a finding of gross negligence. There it was said at page 482, 'Voluntarily to drive an automobile on a public street at any time of day or night with eyes closed, or to yield to sleep while operating such kind of dangerous machine as is an automobile on a public highway, is to be guilty of a degree of negligence exceeding lack of ordinary care, and is a manifestation of recklessness which may be found by judge or jury to be gross negligence within any reasonable definition of that phrase.' This language carries the connotation that falling asleep at the wheel of an automobile without more...