Haggerty v. Sullivan

• Decision Date: 25 October 1938
• Citation: 301 Mass. 302,17 N.E.2d 154
• Parties: THOMAS HAGGERTY, administrator, v. THOMAS SULLIVAN, administrator.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

301 Mass. 302

17 N.E.2d 154

THOMAS HAGGERTY, administrator, v. THOMAS SULLIVAN, administrator.

Supreme Judicial Court of Massachusetts, Berkshire.

October 25, 1938

September 20, 1938.

Present: FIELD, C.

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

Negligence, Gross Motor vehicle, In use of way, Assumption of risk. Practice Civil, Requests, rulings and instructions.

A finding of gross negligence of an automobile operator was warranted by evidence that while going at a high rate of speed, to which he had soon returned after slowing at the request of a passenger, he turned his head to speak to those riding on the rear seat and then, upon being warned of an approaching vehicle, turned the automobile sharply to the right and ran for more than two hundred feet off the travelled part of the way, going over and breaking the top of a culvert and finally striking a tree.

A trial judge is not required to give instructions to the jury respecting the legal effect of part only of the evidence material to the issue involved.

Evidence that before beginning an automobile ride a guest knew that the operator was accustomed to drive at high speed, and that previous to an accident there was a stop at a "roadside place" did not require a ruling that the guest had assumed the risk of injury through excessive speed.

TORT. Writ in the Fourth District Court of Berkshire dated August 26, 1935.

Upon removal to the Superior Court, the action was tried before Burns, J. The original plaintiff testified on cross-examination that on the outward trip the operator had driven at fifty-five to sixty miles an hour; that the witness knew the operator "had on many occasions when she was with her driven at fifty-five to sixty miles per hour and that she had this in mind when she accepted her invitation to ride; that at that time she also had in mind the fact that . . . [the operator] on other occasions would slow down when somebody spoke to her but then would speed up again;" and that the party had stopped at a "roadside place" during a rain storm. Two of the defendant's requests for rulings were as follows: "If you find that the . . . [plaintiff's intestate] knowing that . . . [the operator] customarily drove at a speed of fifty to sixty miles per hour, nevertheless accepted . . . [the operator's] invitation to ride with her, the plaintiff cannot recover for the accident if you find it was in any way caused by excessive speed . . . ." "The . . . [plaintiff's intestate] knowingly assumed the risk of any accident that was caused or contributed to by a speed of fifty to sixty miles per hour . . . ."

There was a verdict for the plaintiff in the sum of $2,000. The defendant alleged exceptions.

The case was submitted on briefs.

R. J. Dunn & F.

M. Myers, for the defendant.

E. K. McPeck & F.

W. Cassidy, for the plaintiff.

RONAN, J. In this action of tort for damages for personal injuries, the jury returned a verdict for the plaintiff, and the case is here upon exceptions to the refusal to grant certain requests for instructions, to direct a verdict for the defendant and to grant a new trial. Both parties died after the commencement of the action and the original parties will be referred to as the plaintiff and the defendant, respectively.

Adopting the view of the evidence most favorable to the plaintiff, a jury could find the following facts: The plaintiff, with three other women, was riding in an automobile operated by the defendant along a highway at a speed of from fifty to sixty miles an hour. The surface of the highway consisted of a strip of cement eighteen feet wide, on either side of which was a shoulder six feet in width. This road was wet at the time of the accident. The defendant turned her head to the right to speak to the three women who were seated on the rear seat, when the plaintiff, seeing an automobile approaching, said, "Look, May." A companion gave a similar warning. The defendant then looked ahead and turned her automobile sharply to the right to avoid the oncoming automobile. She again pulled her automobile to the right and went off the cement road, across the shoulder,...