McGrath v. Parsons

• Decision Date: 01 December 1942
• Citation: 45 N.E.2d 384,312 Mass. 476
• Parties: ARTHUR MCGRATH v. HAROLD PARSONS. LEVI J. MUISE, administrator, v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

312 Mass. 476

45 N.E.2d 384

ARTHUR MCGRATH v. HAROLD PARSONS. LEVI J. MUISE, administrator, v. SAME.

Supreme Judicial Court of Massachusetts, Essex.

December 1, 1942

November 2, 1942.

Present: FIELD, C.

J., DONAHUE, QUA COX, & RONAN, JJ.

Negligence, Guest Gross, Motor vehicle, Use of way.

Evidence of the circumstances in which the captain and part owner of a fishing vessel two days before Christmas transported a member of the crew in the captain's automobile from the home port of the vessel to a city where the member intended to make a visit and whence they planned to return to the vessel in time to go on a fishing trip late on

Christmas day did not warrant a finding that at the time of an accident on the way to the city the member was more than a guest of the captain in the automobile.

Evidence that at a place where a highway curved sharply to the left an automobile at night went over the curb and across the sidewalk, broke off a five-inch tree, went through a fence made of pipe and dropped to lower land abutting the highway without evidence of careless driving as it approached the place of the accident, did not warrant a finding of gross negligence of the operator.

TWO ACTIONS OF TORT. Writs in the District Court of Eastern Essex dated October 3, 1940.

The declaration in the McGrath case contained, among others, a count based on allegations that the plaintiff was an employee of the defendant and was riding in the defendant's automobile "for a consideration" when he was injured through the defendant's negligent operation thereof, and a count based on gross negligence of the defendant. The declaration in the Muise case contained, among others, a count for conscious suffering based on allegations that the plaintiff's intestate was an employee of the defendant and was riding in the defendant's automobile "for a consideration" when he was injured through the defendant's negligent operation thereof, a count for conscious suffering based on gross negligence of the defendant, and counts for the death of the intestate.

Upon removal to the Superior Court, the actions were tried together before Good, J., who ordered verdicts for the defendant on all the counts in the McGrath case and on all the counts in the Muise case except one of the counts for death, on which there was a verdict for the plaintiff. The plaintiffs alleged exceptions.

H. S. Avery, (Van C.

Lawrence with him,) for the plaintiffs.

W. W. Jump, for the defendant.

RONAN, J. The plaintiff in the first case, and the plaintiff's intestate in the second case, one Muise, were members of the crew of a fishing vessel of which the defendant was captain and part owner and which was engaged in making trips out of New Bedford and returning to that city, where the fish was marketed. Both men informed the defendant during the early morning of December 22, 1939, that they intended to leave that morning by train to take Christmas presents to some relatives in Gloucester. The captain told them that there was certain work to be done on the vessel's equipment and that as he too intended to go to Gloucester they could accompany him and could return with him as he planned to make a fishing trip in season to market the catch the day after Christmas. The defendant, accompanied by McGrath and Muise left New Bedford early on the morning of December 23, 1939 in the defendant's automobile. The defendant operated the automobile. McGrath and Muise occupied the rear seat. The defendant testified that, while proceeding at about twenty-five miles an hour along a highway in Manchester, he was blinded by the lights of an approaching automobile, and that before he could slow down his own automobile went across the sidewalk and tipped over in a yard. There was evidence that there was a sharp curve to the left as the automobile was travelling where it crossed the sidewalk, and that it broke off a tree five inches in diameter, and, after breaking through a fence, composed of two horizontal sections of pipe attached to uprights of pipe located on the inside of the sidewalk, dropped down seventeen feet to the level of the land abutting the...