Oppenheim v. Barkin

• Decision Date: 11 January 1928
• Citation: 262 Mass. 281,159 N.E. 628
• Parties: OPPENHEIM v. BARKIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

262 Mass. 281

159 N.E. 628

OPPENHEIM

v.BARKIN.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 11, 1928.

Report from Municipal Court of Boston; John A. Bennett, Judge.

Action by Isidore Oppenheim against Benjamin Barkin. On report. Order dismissing report reversed, and judgment entered for defendant.

Negligence k67-Guest, sleeping in automobile, held not entitled to recover for injury, notwithstanding driver's gross negligence.

Automobile passenger, who, knowing that driver had been driving car for a long period of time, slept in back seat of car, thus placing absolute reliance on driver's caution, held not entitled to recover for injury when driver drove automobile across highway from right to left side into a post, though driver was guilty of gross negligence.

J. H. Blanchard, of Boston, for plaintiff.

A. S. Allen, of Boston (J. T. Connolly, of Boston, on the brief), for defendant.

CARROLL, J.

The plaintiff, while riding with the defendant in an automobile as his guest, was injured shortly after four o'clock on the morning of June 1, 1926, about two miles east of Worcester on the highway leading to Boston. The judge found that the defendant, who was operating the automobile, turned from the right side of the road to the left and ran into a post; ‘that there was no reason for his doing so unless he was asleep.’

The defendant testified that car tracks were on the right-hand side of the way; that the space to his left of the car tracks was ‘wide enough to permit three cars to pass'; that just before the accident an automobile approached from the direction of Boston, ‘travelling on the defendant's ‘right-hand side” and ‘going zigzag’; that he turned to the left to avoid a collision and hit the telegraph pole. This evidence was contradicted.

A witness for the plaintiff, who at the time of the accident was seated beside the defendant, testified that he saw no automobile approaching from the opposite direction; that ‘all of a sudden I saw our car start to go like that [indicating] and I didn't know how to make out.’ The plaintiff admitted that when the accident happened he was asleep on the rear seat and ‘knew nothing whatsoever about the journey from four o'clock until he was picked up after the accident.’

Assuming that there was evidence to support a finding of gross negligence by the defendant in driving his automobile across the highway from the right to the left side (Manning v. Simpson [Mass.] 159 N. E. 440), there was no evidence that the plaintiff himself was exercising any care. He was asleep, and entrusted himself entirely to the care of the defendant, without using any precaution for his own safety. They left New York on May 31, about five o'clock in the afternoon, reaching Springfield about thirty minutes after one o'clock on the morning of June 1, and leaving Worcester...