Head v. Morton

• Decision Date: 01 February 1939
• Parties: HEAD v. MORTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

302 Mass. 273

19 N.E.2d 22

HEAD

v.MORTON.

Supreme Judicial Court of Massachusetts, Middlesex.

Feb. 1, 1939.

Exceptions from Superior Court, Middlesex County; Brown, Judge.

Personal injury action by Annie S. Head against Grace E. Morton. Verdict for plaintiff. On defendant's exceptions.

Exceptions sustained.H. Richter, of Boston, and A. R. Brown, of Brookline, for plaintiff.

M. Z. Kolodny and M. T. Prendergast, both of Boston, for defendant.

COX, Justice.

The jury returned a verdict for the plaintiff on the first count of her declaration, which alleged that her injuries were sustained by reason of negligence in the operation of the defendant's automobile. It found for the defendant on the second count of the declaration, which alleged gross negligence of the defendant. It also answered in the negative the special question, submitted to it by the trial judge, which asked if the plaintiff was injured in consequence of the gross negligence of the defendant. The exceptions are to the denial by the trial judge of a motion for a directed verdict, to his refusal to give certain requests for rulings, and to a portion of his charge.

The plaintiff testified that she and the defendant were members of a club and that at one of its meetings in April, 1932, she, with other members, was invited to go to defendant's house in Arlington. The members objected as they thought it was too far from the ‘car,’ but the defendant said she would come down with her automobile and meet all the members who could not come in their own automobiles. ‘Mrs. Morton told them when they arrived that she would come down and meet them.’ On the appointed day the plaintiff went to Arlington by street car with a Miss Hill who was the ‘guest of the day.’ Upon leaving the street car, she telephoned from a drugstore to the defendant who said that she would ‘come down in a few minutes; which she did.’ A Miss Harris, who was the State regent of the ‘society’ (club), met them in the drugstore ‘to go up with them.’ Soon after, the the defendant arrived in her automobile and stopped at the sidewalk where the plaintiff, Miss Harris, and Miss Hill were waiting. The defendant ‘stopped the car and greeted us. And Miss Hill being a guest and the older person, I helped her into the * * * I turned and helped her into the car; I mean motioned her to get in. She got into the rear seat. I turned, expecting to go into the front seat, thinking I might; and as I turned, Miss Harris got in and shut the door. And I turned naturally to get in the back seat; and Mrs. Morton started the car and hit me, threw me.’ She was struck by the rear door which was open. She ‘was standing just ready to get into the car when the door struck * * * [her].’ In answer to the question ‘Had you left the sidewalk before the door hit you?’ she answered, ‘I was in the air. I hadn't left anything.’ Her right foot was in the air and her left foot was on the curbstone and she was ‘starting into the car in that motion.’

The defendant testified that on the appointed day she was at her home ‘preparing luncheon for her guests who were to come to the club meeting,’ and that she received a telephone call from the plaintiff who told her that Miss Harris was with her and ‘as Miss Harris was our guest of honor, I said I would come down. * * *’ She drove to the street corner where the plaintiff had told her she would be and stopped her automobile. Without getting out of her automobile, she reached across and opened the front door. At that time the plaintiff and Miss Hill were on the sidewalk. Miss Harris got into the front seat; Miss Hill got in and ‘then Miss Head started to get in, and she put her foot on the running board. * * *’ She thought the plaintiff was in and was anxious ‘to be sure she didn't start the car until everybody was in.’ She had invited the club members to come to her house.

There is nothing in the evidence that makes the case any better for the plaintiff. In fact Miss Hill, the only other witness who testified as to what the plaintiff was doing just before her injury, said that ‘her [the plaintiff's] hand was on the door and her foot was on the running board * * *’; and the auditor who heard the parties in the first instance found that the plaintiff was in the act of stepping from the gutter to the running board to get into the rear seat with ‘one of her hands taking hold of the car’ when it started. The plaintiff contends, however, that the jury could have found there was no invitation by the defendant to the plaintiff to enter the automobile, for the reason that the defendant's husband, who was the defendant in a companion case tried with the case at bar, in answer to an interrogatory propounded to him in his case answered: ‘I am informed that she [the defendant] did not’ invite the plaintiff to ride in the automobile; and for the further reason that he testified at the trial that he ‘was informed the defendant never invited the plaintiff to enter the car.’ The answer to the interrogatory does not help the plaintiff, McNiff v. Boston Elevated Railway Co., 234 Mass. 252, 254, 125 N.E. 391, and the testimony of the defendant's husband at the trial amounts to nothing more than that he had been informed that the defendant never invited the plaintiff to enter the automobile. There is nothing to bring the case within the rule stated in Whiteacre v. Boston Elevated Railway Co., 241 Mass. 163, 165, 166, 134 N.E. 640. The plaintiff therefore is bound by her testimony. Sullivan v. Boston Elevated Railway Co., 224 Mass. 405, 112 N.E. 1025;Fortune v. New York, New Haven & Hartford Railroad Co., 271 Mass. 101, 104, 170 N.E. 923, and cases cited.

If the relationship of ‘host’ and ‘guest’ as these words are commonly used, subject to what was said as to this relationship in Ruel v. Langelier, Mass., 12 N.E.2d 735, had come into existence at the time of the plaintiff's injury, she cannot recover. We are not aware that this precise question has been raised in any case where the facts are similar to those in the case at bar, and what is said hereinafter must be taken as applying to the facts in this case. There is no occasion or intent to lay down any general rule.

The plaintiff contends that the rule adopted in determining when a person becomes a passenger on a street car, see Duchemin v. Boston Elevated Railway Co., 186 Mass. 353, 71 N.E. 780,66 L.R.A. 980, 104 Am.St.Rep. 580,1 Ann.Cas. 603, should apply in the case at bar. In the case just cited, the court said, at page 357, 71 N.E. 780, that it was not willing to go further than the doctrine stated in Davey v. Greenfield & Turner Falls Street Railway Co., 177 Mass. 106, 58 N.E. 172, that, when there has been an invitation on the part of the carrier by stopping for the reception of a passenger, any person actually taking hold of the car and beginning to enter it is a passenger. See Fournier v. Holyoke Street Railway Co., 258 Mass. 257, 259, 154 N.E. 546. In the Fournier Case the defendant, apparently upon the assumption that the car was stopped to receive the plaintiff, and upon the further assumption that the car started upon the signal of the conductor before she had taken hold of the car and had begun to enter it by placing one foot on the step, as she had testified, asked for the following ruling [page 548]: ‘If Mrs. Fournier did not have hold of the car for the purpose of boarding it when the signal for the car to start was given, she was not a passenger and the defendant did not owe her the duty it owed a passenger.’ The court, at pages 259, 260, 154 N.E. at page 548, said: ‘This request was refused rightly. It is not true as an absolute proposition of law that a person cannot and does not become a passenger before he takes hold of the grab iron of a trolley car. That act is but a circumstance to justify an implicationthat the person desiring passage has offered himself to be carried and that such offer has been accepted by the carrier. * * * If the facts do not justify an implication that the traveler has offered himself and been received as a passenger, it is true’ that a carrier does not owe him the duty it owes to a passenger.

A person, by signaling for a street car to stop, does not become entitled to the rights of a passenger. Welsh v. Concord, Maynard & Hudson Street Railway Co., 223 Mass. 184, 111 N.E. 693. It is the general rule that when a passenger has...