Laffey v. Mullen
| Decision Date | 07 April 1931 |
| Citation | 275 Mass. 277,175 N.E. 736 |
| Parties | LAFFEY v. MULLEN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; Joseph Walsh, Judge.
Action by Mary E. Laffey, p. p. a., against Albert Mullen. Verdict for defendant. On plaintiff's exceptions.
Exceptions overruled.
J. M. Graham, of Boston, for plaintiff.
S. P. Sears, of Boston, for defendant.
The plaintiff was injured when a tandem motorcycle in which she was riding as a guest of the defendant, the driver, overturned in consequence of striking from behind a slowly moving horse-drawn tip cart. The accident took place on the broad and much used Taunton turnpike in the dusk of a bitterly cold November afternoon. Both parties then were minors, the plaintiff seventeen and the defendant nineteen years of age. At the trial the judge, pursuant to leave reserved under G. L. c. 231, § 120, directed a verdict for the defendant. The case is before us upon the plaintiff's exception to this order. For the purposes of the case, the defendant, in his brief, ‘concedes that the jury would have been warranted in finding that gross negligence on his part contributed directly to the plaintiff's injuries.’ It is his contention that the plaintiff was precluded from recovery.
Although the credibility of the testimony of the plaintiff with regard to what she knew and felt was so affected by testimony from other witnesses that the jurors would be justified in rejecting her statements, we think she is bound on this issue by what she has asserted under oath. Sullivan v. Boston Elevated Railway Co., 224 Mass. 405, 112 N. E. 1025;Fortune v. New York, New Haven & Hartford Railroad Co. (Mass.) 170 N. E. 923, and cases cited. No other witness could know her knowledge and feelings. Whiteacre v. Boston Elevated Railway, 241 Mass. 163, 165, 166, 134 N. E. 640, is not applicable. It is not open to her to ask that her testimony in that respect should be disbelieved because testimony of others tended to show the non-existence of facts which as she asserted affected her conduct. She testified that she had never before ridden upon a motorcycle; that the defendant, against her complaints, drove at an unreasonable speed and failed to heed her, though at one time she pounded his back and asked him to go more slowly; that she was told the headlight was poor and the brakes defective; that the cold air forced her to keep her head down behind the driver's back so that she could not see...
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...v. Lynn Sand & Stone Co., 270 Mass. 340, 170 N.E. 77;Monaghan v. Keith Oil Corp., 281 Mass. 129, 183 N.E. 252; Compare Laffey v. Mullen, 275 Mass. 277, 175 N.E. 736. The doctrine of voluntary surrender as enunciated in the Shultz Case is that it amounts to a test which is to be applied ‘dis......
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Bessey v. Salemme
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