Holland v. Pitocchelli

• Decision Date: 01 March 1938
• Citation: 13 N.E.2d 390,299 Mass. 554
• Parties: GLADYS HOLLAND v. MARY PITOCCHELLI. MILTON HOLLAND v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

299 Mass. 554

13 N.E.2d 390

GLADYS HOLLAND v. MARY PITOCCHELLI. MILTON HOLLAND v. SAME.

Supreme Judicial Court of Massachusetts, Essex.

March 1, 1938

October 4, 5, 1937.

Present: RUGG, C.

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

Negligence Assumption of risk, Motor vehicle.

A woman who had had extended experience in riding in automobiles and one lesson in driving, properly might be found negligent if, while receiving a driving lesson, she started to drive off the road and, when her teacher applied the emergency brake unintentionally stepped on the accelerator causing the automobile to continue off the road and tip over; and a finding was not required that her teacher had assumed the risk of injuries then received.

TWO ACTIONS OF TORT. Writs in the District Court of Lawrence dated June 27 1935.

Upon removal to the Superior Court, the actions were heard by Donnelly, J., who found for the plaintiffs in the sums, respectively, of $570 and $83.25. The defendant alleged exceptions.

W. W. Jump, for the defendant. M. J. Batal, for the plaintiffs.

RUGG, C.J. These are actions of tort arising out of an automobile accident. The defendant was operating an automobile owned by her husband. The plaintiff Gladys Holland was on the front seat of the automobile and received personal injuries. Milton Holland is her husband and seeks to recover consequential damages. In the declarations there are allegations of negligence of the defendant and in the action of Gladys Holland there is a second count alleging gross negligence. The answer of the defendant in each case contained a general denial and a plea of contributory negligence on the part of the plaintiff. The actions were referred to an auditor whose findings of fact were not final. The plaintiffs reserved the right to introduce further evidence under Rule 88 of the Superior Court (1932). The finding of the auditor was for the defendant in each case. The accident occurred on a country road in Methuen shortly after three o'clock on an August afternoon in 1934, when the "weather was fine and the road dry." The findings of the auditor in the case of the female plaintiff were these, in substance: The plaintiff and the defendant were good friends and neighbors. The husband of the defendant owned an automobile and was himself a driver, but his wife had not learned to drive. The husband of the defendant requested the plaintiff to teach his wife to drive, in which request the defendant joined. The plaintiff undertook to do so. The husband of the defendant furnished the automobile for this purpose. The two women started out for the instructions and drove about on the roads near their homes, the plaintiff driving at times and then turning the wheel over to the defendant with instructions as to the driving and control of the automobile. On the request and advice of the husband of the defendant they kept off the much-travelled highways. At the corner of two streets, the defendant driving and the plaintiff, the instructor, sitting beside her, the automobile was turned to the left under the guidance and direction of the plaintiff. After making the turn and a few feet from the corner, the defendant drove too far to the left, went off the road into a depression and over a grass-grown field for a distance of eighty feet, and before the automobile could be stopped it tipped over. When the automobile was too far to the left and was running off the road into the field, the plaintiff seized the emergency brake applied it and in this way tried to stop the automobile. At that time, by mistake and unintentionally, the defendant, the driver, put her foot on the accelerator, which overcame the resistance of the brake and the automobile went on into the field and tipped over. The plaintiff was painfully and seriously injured. The plaintiff was an experienced driver, and a competent person with caution and good judgment. If the defendant had been an experienced driver, her driving would have been negligent, but she was not an experienced driver, as the plaintiff well knew. There was a risk of the happening of various things which would be inconsistent with due care on the part of a driver of experience. The auditor found also that "under the conditions the accident was not due to the negligence of the defendant, but was caused by unskilful driving of the automobile by the defendant due to inexperience alone, the risk of which was assumed by the plaintiff." The finding was for the defendant on the ground that there was no negligence by the defendant, and on the ground that the plaintiff assumed the risk. The auditor made substantially the same findings in the action of Milton Holland against the defendant.

The cases were tried by a judge of the Superior Court sitting without a jury. In addition to the reports of the auditor, further evidence was introduced to the effect, as stated in the exceptions, that the defendant received a lesson in driving an "automobile from her husband about a year prior to the date the accident occurred, and that time she drove very well and that the lesson in driving lasted for about an hour. That she had ridden thousands of miles in an automobile and was in an automobile practically daily. That she observed the acts of her husband while driving and saw him use the brake clutch, gas pedal, and emergency brake, and she was somewhat familiar with the purposes of them; and that she knew if she put her foot on the gas instead of the brake, that the car would get out of control. That on the day of the accident, and while being instructed by the plaintiff, she turned two corners pretty good, and...