Pepper v. Morrill

• Decision Date: 20 February 1928
• Docket Number: No. 2168.,2168.
• Citation: 24 F.2d 320
• Parties: PEPPER v. MORRILL.
• Court: U.S. Court of Appeals — First Circuit

24 F.2d 320 (1928)

PEPPER v. MORRILL.

No. 2168.

Circuit Court of Appeals, First Circuit.

February 20, 1928.

George F. Leary, of Springfield, Mass. (George D. Cummings and Leary, Cummings & Leary, all of Springfield, Mass., on the brief), for plaintiff in error.

Herbert Parker, of Boston, Mass. (Everett B. Horn, of Boston, Mass., on the brief), for defendant in error.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

JOHNSON, Circuit Judge.

The plaintiff in error, who was the plaintiff below, brought an action in the District Court of the United States for the District of Massachusetts against the defendant in error, alleging that she had received injuries on July 27, 1925, by the carelessness, recklessness, and gross negligence of the defendant in operating and controlling an automobile in which she was riding upon a public highway.

On July 27, 1925, she left Boston with her husband in a coupé automobile owned by him, and the defendant was invited by him to accompany them. They left Boston about 5 o'clock in the afternoon, and reached West Brookfield, Massachusetts, about 8 o'clock that evening, where they stopped for dinner. The car had been driven by the plaintiff's husband as far as West Brookfield, but upon resuming their journey after dinner he requested the defendant to drive, stating that he was tired. It rained while they were at dinner, and the plaintiff noticed that the pavement was wet. The defendant complied with the husband's request, and took his seat at the wheel of the car, and the plaintiff, with her husband, sat upon the back seat. The road, for about a half a mile after the defendant had taken the wheel, was torn up, but after they got beyond this the plaintiff testified that the car began to go faster; that it swerved in and out, and passed other cars repeatedly, and seemed to dash from side to side; that its speed in passing cars she should judge was at least 50 miles per hour; that she told her husband Mr. Morrill was driving like a madman; that as the car went around two or three curves there was almost the sensation of tipping up on one wheel; that she shrieked a couple of times when she thought the car was going to turn over, and told the defendant to go easy and stop; that they reached a descending grade just before the accident happened, and in going down this grade that she thought she noticed an increase in speed, which caused her to shriek; and that was the last she knew.

At the place of the accident there is a fork of the road, that to the right leading to Ware, and the one to the left to Springfield, and on to Hartford, Conn., which was their destination. Just before reaching the fork of the road, she testified that her husband said to the defendant, "Turn to the left, Jack," and then the accident occurred.

At the fork in the road there was a wooden fence and two or three lamp posts. As the defendant attempted to turn to the left from the Ware road, the right-hand side of the car collided with the fence and one of the lamp posts, breaking down both, and bringing up against a telegraph pole, which was pushed to one side, but not broken off. The plaintiff's husband was instantly killed, she was seriously injured, and the defendant was rendered unconscious.

A member of the state constabulary, who was doing police duty in the vicinity of the accident, proceeded there immediately after it occurred, and testified that there was a hill just before reaching the scene of the accident from West Brookfield; "that the hill was straight about halfway down, and a curve started to the left about halfway down to the bottom; * * * that there is a fork in the road, one road going to Ware, and the other to Springfield. At this fork in the road the hill was still descending; not so much, but still a grade. On the Ware road it continues to be a hill; on the Springfield road, just a slight grade; that at the fork in the road there was a state fence — white fence made of wood — and at the corner, the junction of the two roads, the Y, there were two or three lamp posts. This car had broken the fence, and also one of the posts, and sideswiped the fence and one of the posts at the same time. There was a big telegraph pole, which was pushed to one side to a certain extent, but was not broken off. The car was completely wrecked. The frame was all there, but the glass top was all caved in; the top and front side." He testified that he found the woman and two men laid out on the side of the road; that one man was dead, the other was unconscious, and the woman semiconscious; that he found the tracks made by the car on the wet road; that it seemed to him as though the car started down the Ware road, and the driver suddenly turned toward the left onto the Springfield road, causing the car to collide with the fence and post.

The plaintiff had a long and painful sickness and suffered a permanent injury. The defendant was unconscious for several days, and upon his recovery his mind was a complete blank as to all that happened after leaving West Brookfield.

At the trial the District Judge submitted the following questions to the jury:

(1) Was the accident caused by the gross negligence of the defendant in operating the automobile which he was driving?

(2) Was the plaintiff herself in the exercise of due care?

(3) What was the plaintiff's damage?

The first two questions were answered in the affirmative by the jury, and as an answer to the third they assessed the plaintiff's damage at $4,000.

The court then ordered the jury to return a verdict in favor of the defendant, in the alternative that, if this was decided to be error, then a verdict should be...