Lee v. Chamberlain

• Decision Date: 03 December 1929
• Citation: 148 A. 466
• Parties: LEE v. CHAMBERLAIN (two cases). LEE v. PICKERING (two cases).
• Court: New Hampshire Supreme Court

148 A. 466

LEE

v. CHAMBERLAIN (two cases).

LEE

v. PICKERING (two cases).

Supreme Court of New Hampshire. Merrimack.

Dec. 3, 1929.

Transferred from Superior Court, Merrimack County; Matthews, Judge.

Case by Cora F. Lee against Fred H. Chamberlain and against M. Alice Pickering for personal injuries, and by her husband, George Lee, against Fred H. Chamberlain and against M. Alice Pickering for damages caused him by the injuries to his wife. The actions result from a collision between automobiles which occurred at an intersection of highways at Woburn, Mass. The plaintiffs by invitation of the defendants were riding in a car owned by the defendant Pickering and operated by her chauffeur, the defendant Chamberlain. Trial by jury. At the close of all the evidence, verdicts were directed for the defendants subject to the plaintiffs' exceptions. Case transferred. The facts appear in the opinion. Judgments for defendants.

Robert W. Upton, of Concord, for plaintiffs.

Demond, Woodworth, Sulloway & Rogers and Jonathan Piper, all of Concord, for defendants.

SNOW, J. The defense was that the injured plaintiff was the guest of the defendants, and that the defendant chauffeur was not guilty of gross negligence upon the proof of which alone liability for such injury could arise under the law of Massachusetts. It is conceded that the substantial rights of the parties are governed by that law. Young v. Express Co., 76 N. H. 582, 584, 86 A. 138.

The law there limiting liability for negligent injury to a "guest" in such cases, and defining "gross negligence," as found by the court, is as follows:

"A person who is traveling in the vehicle of another at the latter's request and for the latter's benefit is not a mere guest, and in such case the latter is liable for ordinary negligence."

"One who is traveling gratis in a motor car in company with its owner by such owner's invitation, and is injured by reason of the negligence of the chauffeur operating the car, who is acting at the time as the servant of the owner, cannot maintain an action against such owner for his injuries unless he can show gross negligence on the part of the chauffeur."

"Gross negligence is substantially and appreciably higher in magnitude than ordinary negligence. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an aggravated character, as distinguished from a mere failure to exercise ordinary care. It is very great negligence, or the absence of slight diligence, or the want of even scant care. It amounts to indifference to present legal duty, and to utter forgetfulness of legal obligations so far as other persons may be affected. It is a heedless and palpable violation of legal duty respecting the rights of others. The element of culpability which characterizes all negligence is, in gross negligence, magnified to a high degree as compared with that present in ordinary negligence. Gross negligence is a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a person of ordinary prudence. But it is something less than the willful, wanton, and reckless conduct which renders a defendant who has injured another liable to the latter even though guilty of contributory negligence. * * * It falls short of being such reckless disregard of probable consequences as is equivalent to a willful and intentional wrong. Ordinary and gross negligence differ in degree of inattention, while both differ in kind from willful and intentional conduct which is, or ought to be known to have a tendency to injure."

Cases in evidence cited in the findings of the foregoing include Massaletti v. Fitzroy, 228 Mass. 487, 118 N. E. 168, L. R. A. 1918C, 264, Ann. Cas. 1918B, 1088, and Altman v. Aronson, 231 Mass. 588, 591, 121 N. E. 505, 4. A. L. R. 1185. It appears to be conceded that the law is the same whether the suit is against the chauffeur or against the owner.

Statutory rules of the road deemed material by the parties are:

"Every driver of a motor or other vehicle approaching an intersecting way, * * * shall grant the right of way, at the point of intersection to vehicles approaching from his right, provided that such vehicles are arriving at the point of intersection at approximately the same instant; except that whenever traffic officers are standing at such intersection they shall have the right to regulate traffic thereat." Mass. G. L. c. 89, § 8.

"The person operating a motor vehicle on any way upon approaching an intersecting way or a curve or a corner in said way where his view is obstructed shall slow down and upon approaching any junction of said way with an intersecting way before turning into the same shall slow down and keep to the right of the intersection of the center lines of both ways or extensions thereof, when turning to the right, and shall pass to the right of the Intersection of the center lines of said ways or extensions thereof before turning to the left."

"No person operating a motor vehicle on any way shall run it at the rate of speed greater than is reasonable and proper, having regard to traffic and the use of the way and the safety of the public. It shall be prima facie evidence of a rate of speed greater than is reasonable and proper as aforesaid if a motor vehicle is operated on any way outside of a thickly settled or business district at a rate of speed exceeding twenty miles per hour for the distance of a quarter of a mile, or inside a thickly settled or business district at a rate of speed exceeding fifteen miles per hour for the distance of one eighth of a mile, or in any place where the operator's or chauffeur's view of the road traffic is obstructed either upon approaching an intersecting way, or in traversing a crossing or intersection of ways, or in going around a corner or a curve in a way, at a rate of speed exceeding eight miles per hour." Mass. G. L. c. 90, §§ 14, 17; St. 1925, c. 305.

It is further found that the words "point of intersection," as used in chapter 89, § 8, mean the space common to the streets where they cross each other.

It appears to be conceded by the defendants that want of ordinary care on the part of the defendant Chamberlain could be found on the evidence. The questions presented by the defendants' exceptions therefore are whether, under the law as stated, it can be found on the evidence (1) that the injured plaintiff was not a guest of the defendants; or (2) being a guest, that her injury was occasioned by the gross negligence of said Chamberlain.

1. On the occasion in question, the plaintiffs accepted the invitation of the defendant Chamberlain, with the consent of the defendant Pickering, to ride with them from Boston to Concord where they all resided. It is not claimed that any specific consideration or benefit was paid or bestowed for such carriage. For proof of a "benefit" accruing to the defendants, within the terms of the statute, the plaintiffs rely upon evidence of the prior friendly relations and course of conduct of the parties. The plaintiff Mrs. Lee is a sister of the defendant Chamberlain, and for many years was herself an employee of (Mrs. Pickering. Since her marriage two years before the accident she has continued friendly relations with her former employer, on one occasion doing Mrs. Pickering's housework without pay for eleven days during the latter's illness. For the two years of their married life the plaintiffs had been tenants of Mrs. Pickering. On frequent occasions they had taken trips with the defendants in the Pickering car, during which they had "almost always" furnished basket dinners for the party, invited the defendants to their house for meals, or took food to the Pickering house. On long trips Mr. Lee occasionally paid for gasoline, and on one or two occasions spelled Chamberlain in driving.

This evidence tends to show no more than an interchange of ordinary hospitalities among friends, and would not sustain a finding of the existence of any business arrangement from which it could be implied that the carriage of the plaintiffs on the trip in question was for any past, present, or expectant benefit to the defendants. The ruling of the trial court that the plaintiffs were traveling gratis and not for the benefit of either of the defendants within the meaning of the Massachusetts law is sustained. Flynn v. Lewis, 231 Mass. 550, 121 N. E. 493, 2 A. L. R. 896: Gaboury v. Tisdell, 261 Mass. 147, 158 N. E. 348.

2. The collision occurred at the intersection of the Cambridge road running north and south and the Bedford road which crosses it northwesterly and southeasterly at an angle of about 75 degrees. The former was 24 feet wide, surfaced with concrete 18 feet; the latter 21 feet wide and surfaced for 16 feet. The Pickering automobile, a seven-passenger two-wheel brake Cadillac, was traveling north upon the easterly side of Cambridge road. The accident happened after 9 o'clock in the evening of Monday, July 5, 1926, which was observed as the Fourth. The travel was heavy, and the car was moving along with the traffic in a "string" or "line of cars" at about 25 miles per hour, and had been doing so for a half mile or more. A like line of cars had been passing south on the westerly side of the road, but had come to a stop about 20 to 25 feet north of the intersection, at which point a policeman with his back to the intersection was apparently talking to the occupants of the head car therein. He made no signal, and was paying no attention to the line proceeding north. The lights on the cars in both lines were lighted. The driver of the car directly ahead of the Pickering car, and about 25 feet away, after signaling with his hand and without slackening his speed, turned "quickly" to the east on to the Bedford road. The Pickering car, continuing its course for about 20 feet, was in collision with a Velie touring car which had reached the intersection by Bedford...