McGaffigan v. Kennedy
| Decision Date | 28 December 1938 |
| Citation | 302 Mass. 12,18 N.E.2d 344 |
| Parties | ANNA MCGAFFIGAN v. JOHN B. KENNEDY. MARION RYAN v. SAME. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
October 6, 1938.
Present: FIELD, C
J., DONAHUE LUMMUS, QUA, & DOLAN, JJ.
Evidence, Hospital record. Hospital. Practice, Civil, Preliminary question. Negligence, Gross, Motor vehicle, In use of way, Assumption of risk, Contributory. Whether a hospital, whose records are offered in evidence under G.L. (Ter.
Ed.) c. 233 Section 79, is one included within the provisions of c. 111 Section 70, is a preliminary question to be decided by the trial judge, and his decision thereof is final unless it appears that the evidence did not warrant it as a matter of law.
No error appeared in a decision by a trial judge that an incorporated hospital receiving no support from the Commonwealth or any municipality, supported by its receipts from patients, but treating without charge charity cases for the town where it was located, was one whose records might be received in evidence within G.L. (Ter. Ed.) c. 233, Section 79.
Evidence that operation of an automobile at night at a high speed on roads with which the operator was not familiar was persisted in against remonstrances by guests therein, and that, just before a collision with the rear of a truck in plain view on a lighted road, he deliberately turned in his seat without slackening speed and took his attention from his driving, warranted a finding of gross negligence on his part.
Evidence that a guest in an automobile who had remonstrated with the operator respecting his driving during a stop in the journey, nevertheless returned to it and resumed the journey did not as a matter of law require a finding that the guest was guilty of contributory negligence or assumed the risk of injury through that manner of driving, where there also was evidence that he justifiably assumed that his remonstrances would be heeded and that at the time of the reentry he was far from home at a late hour of night and there was no evidence of other means of conveyance available.
THREE ACTIONS OF TORT. Writs in the Superior Court dated April 6, 1934. The defendant's answers contained only a general denial and an allegation of contributory negligence.
The actions were tried together before Walsh, J., and there were verdicts for the plaintiffs respectively in the sums of $6,101.67, $915.25, and $610.10. The defendant alleged exceptions.
J. F. Cavanagh, for the defendant. J. F. Dunn, for the plaintiffs.
These three actions of tort, to recover compensation for personal injuries sustained by the plaintiffs while riding as guests in an automobile operated by the defendant, were tried to a jury, which returned a verdict in each case for the plaintiff. They now come before us on the exceptions of the defendant to the admission of certain evidence and to the denial of his motion in each case for a directed verdict.
The defendant excepted to the admission in evidence of records of the New England Sanitarium relative to the treatment of the plaintiffs following the accident, on the ground that the hospital was not one within the meaning of G.L. (Ter. Ed.) c 111, Section 70, and that therefore its records were not admissible under the provisions of G.L. (Ter. Ed.) c. 233, Section 79. Prior to the admission of the records, the record librarian testified that the hospital was an incorporated one; that it received no support by contributions from the Commonwealth or from any town; that it was supported by its receipts from patients but treated the "charity cases for the Town of Stoneham" without charge. Whether the hospital involved was one included within the provisions of G.L. (Ter. Ed.) c. 111, Section 70, was a preliminary question of fact to be decided by the judge. Gorton v. Hadsell, 9 Cush. 508, 511. Lake v. Clark, 97 Mass. 346 , 349. Commonwealth v. Reagan, 175 Mass. 335 , 336, 337. Davis v.
Meenan, 270 Mass. 313 , 315. The determination of that fact by the judge is conclusive unless it appears that the evidence did not warrant the finding as a matter of law. Dexter v. Thayer, 189 Mass. 114 , 115. Slotofski v. Boston Elevated Railway, 215 Mass. 318 , 320. Kelley v. Jordan Marsh Co. 278 Mass. 101, 106-107. The mere fact that a charge is made by an incorporated hospital to those able to pay for treatment does not exclude it from the provisions of the statutes before referred to, when, as in the instant cases, it appears that it does offer treatment to patients free of charge. See New England Sanitarium v. Stoneham, 205 Mass. 335 , 341-342, and cases cited; Beverly Hospital v. Early, 292 Mass. 201 . We think the evidence warranted a finding that the hospital in question was an incorporated one offering treatment to patients free of charge within the meaning of G.L. (Ter. Ed.) c. 111, Section 70, and that the records objected to by the defendant were properly admitted in evidence.
The defendant's motion in each case for a directed verdict was specifically rested on two grounds. The first reads as follows: "As a matter of law the credible evidence does not warrant the finding that the defendant was guilty of gross negligence." Manifestly the judge could not separate the evidence into that which was credible and that which was incredible. The weight to be given evidence is commonly for the jury. Commonwealth v. Davis, 284 Mass. 41 , 51. Without approving the form, we treat the use of the word "credible" as inadvertent, and the motion, so far as the first ground is concerned, as if it had been based on all the evidence. The motion could not properly have been granted on that ground. There was ample evidence, which need not be recited in detail, to warrant a finding by the jury that the defendant at the time of the accident was guilty of gross negligence. It is sufficient to say that for a considerable period prior to the accident and when it occurred he was driving at the rate of speed of fifty to sixty miles an hour (see G.L. [Ter. Ed.] c. 90, Section 17; Picarello v. Rodakis, 299 Mass. 33, 36) over roads with which he was not familiar. There was also evidence of "persistence in a palpably negligent course of conduct over an appreciable period of time," Dean v. Bolduc, 296 Mass. 15 , 17, conduct persisted in despite remonstrances against the speed at which he was driving. The jury could also find that just before the happening of the accident the defendant turned his head to the rear of the automobile; that this act was not momentary or partial but was a deliberate and complete inattention to the operation of the vehicle, and was one that was not associated with the business of operating it. See Kirby v. Keating, 271 Mass. 390; Meeney v. Doyle, 276 Mass. 218, 220; Crowley v. Fisher, 284 Mass. 205 , 206. Compare Folan v. Price, 293...
To continue reading
Request your trial