Labatte v. Lavallee

• Citation: 155 N.E. 433,258 Mass. 527
• Parties: LABATTE v. LAVALLEE.
• Decision Date: 03 March 1927
• Court: United States State Supreme Judicial Court of Massachusetts

258 Mass. 527

155 N.E. 433

LABATTE

v.LAVALLEE.

Supreme Judicial Court of Massachusetts, Middlesex.

March 3, 1927.

Exceptions from Superior Court, Middlesex County; W. A. Burns, Judge.

Action by Rose Labatte against May Lavallee. On plaintiff's exceptions after directed verdict for defendant. Exceptions sustained.E. J. Tierney, of Lowell, for plaintiff.

A. S. Howard, of Lowell, for defendant.

CROSBY, J.

This is an action of tort to recover damages for personal injuries. The plaintiff testified that she was an employee of the defendant in her store in Lowell; that shortly before the store closed on July 12, 1923, she was requested by the defendant to go with her to Haverhill to see a Mrs. Langdon ‘whom the defendant wanted to consult concerning business'; that she said she wanted the plaintiff to hear what Mrs. Langdon would say concerning the defendant's business; that, when they got there, the defendant had a private interview with Mrs. Langdon. The plaintiff further testified that she had no interest in the conversation between the defendant and Mrs. Langdon or in the business discussed by them. The plaintiff the defendant went to Haverhill in an automobile owned and operated by the defendant; while returning to Lowell the defendant ran the automobile into a telegraph pole standing on the side of the highway, and the plaintiff was injured.

[1] The accident occurred on a pleasant and cloudless day, and at a time when there was no traffic to interfere with the operation of the car and there were no obstructions in the highway. The automobile ascended a grade to a curve where the way turned nearly at right angles to the left. The pole in question was located where a cinder sidewalk on the right side of the road beyond the curve joined the macadam highway. The plaintiff testified that when they reached a point where the grade began to ascend, and about three hundred feet from the pole, she said to the defendant, ‘Don't go so fast, May, be careful, we have a post just as we go around the curve’; that notwithstanding the warning ‘the defendant continued on her way with unabated speed, and drove her automobile head-on into the pole. * * *’

The defendant testified that she did not see the pole before she struck it; that it was a large pole carrying telegraph wires and cables; that she did not apply her brakes when warned by the plaintiff; that she could not tell that she did anything ‘to stop her car after she had been notified that they were going into the post.’ There was evidence that the pole stood in plain view for a distance of seven or eight hundred feet.

It need not be determined whether upon the entire evidence a finding of gross negligence on the part of the defendant would have been warranted. It is plain, however, that the defendant could be found to have been lacking in ordinary care, and that her negligence caused the plaintiff's injuries. It also could be found that the plaintiff was in the exercise of due care. We do not understand the defendant to contend that the conduct of the plaintiff contributed to her injuries.

[2] The question remains, whether it could be found that the relation of master and servant existed between the parties at the time of the accident, or whether, as matter of law, upon the entire evidence the plaintiff in taking the trip was merely a guest of the defendant within the rule as stated in Massaletti v. Fitzroy, 228 Mass. 487, 118 N. E. 168, L. R. A. 1916C, 264, Ann. Cas. 1918B, 1088,Flynn v. Lewis, 231 Mass. 550, 121 N. E. 493, 2 A. L. R. 896, AND...