Marcinowski v. Sanders

• Decision Date: 16 April 1925
• Citation: 147 N.E. 275,252 Mass. 65
• Parties: MARCINOWSKI v. SANDERS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

252 Mass. 65

147 N.E. 275

MARCINOWSKI

v.SANDERS.

Supreme Judicial Court of Massachusetts, Hampshire.

April 16, 1925.

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

Action of tort by Seth Marcinowski against Hannah H. Sanders, administratrix of estate of Richard Hibbard, deceased, to recover for personal injuries in automobile accident. Verdict for plaintiff, and defendant excepts. Exceptions sustained, and judgment for defendant.

1. Negligence k22 1/2-Invitee can recover for gross negligence of automobile driver.

Where plaintiff was injured while riding in defendant's automobile as invitee, defendant would be liable if plaintiff was in exercise of due care and his injuries were result of defendant's gross negligence.

2. Negligence k136(26)-Negligence of one riding in automobile held for jury.

Where plaintiff in going to fire in dwelling house was invited by defendant to ride in his automobile and was injured when automobile skidded into telephone pole, whether plaintiff, who made no protest as to manner of driving, was in exercise of due care, held for jury.

3. Negligence k134(4)-Evidence held not to warrant finding of ‘gross negligence’ of automobile driver.

Where plaintiff while hurrying towards neighbor's dwelling house, which was burning, was invited by defendant to ride in his automobile and was injured when automobile swayed from road, struck telephone pole, and threw plaintiff out, evidence held not to warrant finding of ‘gross negligence,’ which is negligence of greater culpability than lack of due care respecting rights of others.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Gross Negligence.]

D. D. & E. L. O'Brien, of Northampton, for plaintiff.

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

CROSBY, J.

This is an action to recover for personal injuries received by the plaintiff while riding in an automobile owned and operated by one Richard Hubbard. The action was originally brought against Hibbard, who died after the date of service of the writ and before trial. He will be referred to as the defendant.

There was evidence tending to show that on December 24, 1922, the dwelling house of one Barnish in the town of Hadley was on fire; that the plaintiff, with two other men, all neighbors of Barnish, was walking along the highway toward the place of the fire; that the defendant, who was operating an automobile in the same direction, stopped and invited the plaintiff and the two men to ride, and they accepted; that on the front seat with the defendant was one White; that the place where the plaintiff and the men with him boarded the automobile was about a quarter of a mile distant from the fire to which they were going; that the highway was a rough country road, covered with snow ‘with ruts for one car, and the car was in these ruts, which were ‘pretty straight,’ curving a little from time to time'; that from the point where the men entered the automobile the road sloped down for a distance of about fifty feet and then ascended a very steep grade for about two hundred feet; that after picking the men up the automobile went down the grade ‘very fast,’ and while proceeding up the hill, traveling between thirty-five and forty miles an hour, it ‘swayed to the left and the left part of the machine,’ struck a telephone pole, throwing the plaintiff out of the car and causing the injuries complained of; that the automobile continued some distance after striking the pole and stopped; that the total distance covered while the plaintiff was riding was about one hundred and fifty yards; that the defendant continuously sounded the horn; that the plaintiff did not make any protest as to the speed at which the defendant was proceeding; and that there was no other traffic on the road at that time.

[1] The evidence warranted a finding that the plaintiff was invited by the defendant to ride in his automobile. If the jury so found, the defendant would be liable to the plaintiff if the latter was in the exercise of due care and his injuries were the result of gross negligence on the part of the defendant. Massaletti v. Fitzroy, 228 Mass. 487, 118 N. E. 168, L. R. A. 1918C, 264, Ann. Cas. 1918B, 1088;Flynn v. Lewis, 231 Mass. 550, 121 N. E. 493, 2 A. L. R. 896;Barry v. Harding, 244 Mass. 588, 139 N. E. 298;O'Leary v. Fash, 245 Mass. 123, 140 N. E. 282.

[2] The question is, whether upon the evidence most favorable to the plaintiff the jury were warranted in finding that the operation of the automobile under the circumstances was so...