Murphy v. Smith

• Decision Date: 30 October 1940
• Citation: 307 Mass. 64,29 N.E.2d 726
• Parties: MURPHY v. SMITH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

307 Mass. 64

29 N.E.2d 726

MURPHY

v.SMITH.

Supreme Judicial Court of Massachusetts, Hampshire.

Oct. 30, 1940.

Exceptions from Superior Court, Hampshire County; Hammond, Judge.

Action of tort by Hazel Barnes Murphy against Wayne Smith to recover for injuries sustained in an automobile accident. The trial judge after recording with leave reserved of a verdict for plaintiff in the sum of $1,975 ordered entered a verdict for defendant, and plaintiff saved exceptions.

Verdict entered by judge set aside, verdict returned by jury entered, and judgment thereon entered for plaintiff.

Argued before FIELD, C. J., and DONAHUE, QUA, COX, and RONAN, JJ.

E. L. O'Brien, of Northampton, and W. W. O'Donnell, of Boston, for plaintiff.

D. D. O'Brien, of Northampton, for defendant.

FIELD, Chief Justice.

This is an action of tort to recover compensation for personal injuries alleged to have been sustained by the plaintiff, while riding in an automobile operated by the defendant, by reason of the negligence of the defendant. The case was referred to an auditor whose findings of fact were not to be final. The auditor filed a report. The case was then tried to a jury upon the auditor's report and other evidence, including the testimony of the plaintiff and of the defendant. The jury returned a verdict for the plaintiff. The defendant moved for the entry of a verdict for him under leave reserved. Upon this motion the judge ruled as follows: ‘I rule that under the law of the State of New York which is applicable in this case the plaintiff, according to her own testimony, was not in the exercise of due care. That the plaintiff was herself negligent and her negligence contributed to the injuries she received. Verdict for the defendant is to be entered under leave reserved.’ A verdict for the defendant was entered. The plaintiff excepted.

The accident occurred in the State of New York, and consequently in matters of substantive law the case is governed by the law of that State. Smith v. Brown, 302 Mass. 432, 433, 19 N.E.2d 732. The auditor found ‘that the defendant * * * was guilty of gross negligence.’ According to the subsidiary findings of the auditor the defendant, operating an automobile, in which the plaintiff was riding, on a wet highway in the city of New York, between 3 and 4 o'clock in the morning of November 29-the weather being ‘misty and somewhat foggy’-at a speed between thirty-five and forty-five miles an hour, without slowing down or applying his brakes, swung his automobile to the left to pass another automobile and ‘almost immediately’ saw a pier supporting the elevated structure in front of him, and then swung sharply to the left to avoid the pier, but struck the pier with such force that the plaintiff was thrown out and injured. The auditor found also that the plaintiff, who was sitting at the right of the defendant, ‘had on three different occasions requested the defendant to slow down because she thought he was driving too rapidly,’ and ‘on each occasion the defendant did slow down but later on increased his speed again.’ The auditor made no other subsidiary findings in regard to the plaintiff's conduct. The defendant makes no contention that the evidence did not warrant a finding of negligenceon his part sufficient to support a verdict against him under the law of the State of New York. But the defendant contends that recovery by the plaintiff was barred by her contributory negligence, in accordance with the ruling of the trial judge to that effect, which obviously was the ground upon which a verdict was entered for the defendant.

Since the case was tried in this Commonwealth, though the accident occurred in the State of New York, the law of this Commonwealth-the law of the forum-‘governs matters of procedure and the familiar rules apply that the burden of proving contributory negligence is on the defendant, that a verdict cannot be directed for the defendant on this ground unless the evidence as matter of law required a finding of such negligence, and that the plaintiff is bound by her own testimony except as there is other evidence more favorable to her, see G.L.(Ter.Ed.) c. 231, § 85; Sooserian v. Clark, 287 Mass. 65, 67, 191 N.E. 763.’ Smith v. Brown, 302 Mass. 432, 433, 19 N.E.2d 732, 733. See, also, Levy v. Steiger, 233 Mass. 600, 601, 124 N.E. 477;Gould v. Boston & Maine Railroad, 276 Mass. 114, 117, 176 N.E. 807. And the effect, as evidence, of an auditor's report introduced at the trial of the case to a jury is governed by the law of the forum.

The trial judge could not rightly have entered a verdict for the defendant unless the evidence in the case required as matter of law a finding that the plaintiff was guilty of contributory negligence. The evidence did not as matter of law require such a finding.

The auditor found ‘that the plaintiff was in the exercise of due care and that there was nothing she could have done, in addition to what she tried to do, to prevent the accident; that her injuries were caused solely by the defendant's negligence; and that she was not guilty in any sense of contributory negligence.’ These findings, in the nature of ultimate findings, do not purport to be based solely upon the auditor's subsidiary findings. There are, moreover, no subsidiary findings so necessarily inconsistent with these ultimate findings that as matter of law the subsidiary and ultimate findings cannot stand together. There is nothing in the record to show that the ultimate findings were based on an erroneous view of the law of the State of New York. The ultimate findings, therefore, constitute some evidence that the plaintiff was in the exercise of due care-was not guilty of contributory negligence. See Cook v. Farm Service Stores, Inc., 301 Mass. 564, 567, 17 N.E.2d 890.

The applicable law of the State of New York-so far as it has been brought to our attention, see Smith v. Brown, 302 Mass. 432, 433, 19 N.E.2d 732 as stated in Nelson v. Nygren, 259 N.Y. 71, 75, 76, 181 N.E. 52, 53, is as follows: ‘In the last analysis, the rule governing a guest riding in an automobile is that he should conduct himself as an ordinarily prudent person would, under like circumstances. It he does, he cannot be held negligent as a matter of law. Following the language adopted in the days of the stage coach and other horse-drawn vehicles, courts often add that he should call attention to apprehended danger, protest against fast driving, leave the automobile, if it could be done with safety, or demand that it be stopped, and then get out of it. Such statements are only illustrations of what a reasonably prudent person might do under the circumstances. They do not constitute a legal standard of what a...