Learned v. Hawthorne

• Decision Date: 03 January 1930
• Citation: 269 Mass. 554,169 N.E. 557
• Parties: LEARNED v. HAWTHORNE. BOLGER v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

269 Mass. 554

169 N.E. 557

LEARNED

v.HAWTHORNE.

BOLGER

v.SAME.

Supreme Judicial Court of Massachusetts, Hampden.

Jan. 3, 1930.

Exceptions from Superior Court, Hampden County; D. F. Dillon, Judge.

Actions by Charles C. Learned and by Joseph A. Bolger against Peter Hawthorne, Jr. Verdict for plaintiff in each case, and defendant brings exceptions. Exceptions overruled.

1. Automobiles k246(2)-Instruction that automobile driver would be guilty of gross negligence, as regards injury to guest, if conduct, was worse than negligent but not willful, wanton, and reckless, held not erroneous.

In action by guest against driver of automobile for injuries sustained in collision with trolley car, instruction that defendant would be guilty of gross negligence if conduct was worse than negligent but did not amount to willful, wanton, and reckless conduct, held not erroneous.

2. Automobiles k244(20)-In action for guest's injuries, evidence warranted finding that driver recklessly exercised no forethought or diligence in dangerous situation.

In action by guest against driver of automobile for injuries sustained in collision with trolley car, evidence held to warrant finding that defendant's conduct was that of one who recklessly exercised no forethought or diligence for safety of guest or himself when in situation which most inattentive and careless person would recognize as pregnant with imminent peril to life, person, and property.

3. Automobiles k243(3)-Evidence that automobilist's breath after accident showed he had drunk intoxicating liquor shortly before held relevant on issue of negligence.

In action by guest against driver of automobile for injuries received in collision with trolley car, evidence that defendant shortly before accident had drunk intoxicating liquor, as manifested by his breath immediately after accident, was proper and relevant for jury's consideration of issue of negligence.

4. Automobiles k245(87)-Whether guest injured in collision with trolley failed to exercise reasonable care held for jury.

In action by guest against driver of automobile for injuries in collision with trolley car, it could not be ruled under evidence as matter of law that plaintiff failed to exercise due and reasonable care for own protection and safety, where defendant turned onto trolley tracks and traveled only a few feet before being struck.J. B. Ely and W. C. Giles, both of Springfield, for plaintiffs.

Simpson, Clason & Callahan, of Springfield, for defendant.

PIERCE, J.

These are two actions of tort for personal injuries, arising out of the same accident and tried together to a jury.

The injuries were sustained by the plaintiffs while they were riding as guests of the defendant in an automobile, owned and driven by him, on Liberty street, Springfield, Massachusetts, on the night of May 7, 1927. At the conclusion of the evidence the defendant moved for a directed verdict in each case. The motions were denied and the defendant duly excepted. The pleadings are made a part of the bill of exceptions. The defendant also excepted to certain parts of the charge, as hereinafter set forth. The jury returned a verdict for the plaintiff in each case.

All the material evidence is contained in the bill of exceptions. In their aspect most favorable to the plaintiffs' contentions, the pertinent facts thus disclosed are in substance as follows: Liberty street is a public highway extending northerly from Springfield toward Chicopee Falls. At the time of the accident it was a paved street and was straight for more than five hundred feet in the vicinity of the place of the accident. There was a single-track trolley line in the center of the road, and, assuming there was a trolley car on the track, there was not room for two automobiles to pass abreast on the same side of the track. On the night of the accident the plaintiffs were invited and accepted an invitation of the defendant to take a ride with him in his automobile. The plaintiff Learned sat on the front seat with the defendant and the plaintiff Bolger sat on the back seat. It was dark when the automobile reached Liberty street. Sitting on the left of the automobile, the defendant was driving on the right-hand side of that street and the trolley track at the rate of twenty to twenty-five miles an hour and was following on the same side of the road and about fifteen feet behind another automobile which was travelling ‘around fifteen to twenty miles an hour.’ The defendant turned out onto the trolley track to his left to pass the automobile ahead of him, and when he was abreast of it he and the plaintiffs saw an electric car lighted up about one hundred feet away coming toward them. The automobile of the defendant was lighted but he gave no signal of any kind as he tried to pass the automobile ahead. The way on the defendant's left was perfectly clear and no traffic other than the trolley car was coming on that side of the road. After he pulled to the left and was upon the car track his automobile travelled but a few feet before the front end of it came in contact with the front end of the trolley car.

The defendant testified that he did not have to pass the automobile in front of him; that he was very close to it just before the collision, ten or fifteen feet behind, and he could have put on his brakes and stopped without hitting it if he had wanted to; that ‘If he had been looking before he turned out he was too close behind the other automobile to see the trolley car’ and that ‘He was so close behind the automobile ahead that he couldn't have seen the trolley car coming until he pulled out onto the tracks.’ He further testified that on that night he knew as a fact that the street near the scene of the accident was in bad shape and that there were deep ruts near the trolley track; that the rails were below the surface of the road quite considerably, and if an automobile got caught on the...