Picarello v. Rodakis
| Citation | 299 Mass. 33,11 N.E.2d 470 |
| Parties | PICARELLO v. RODAKIS (two cases). |
| Decision Date | 07 December 1937 |
| Court | United States State Supreme Judicial Court of Massachusetts |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Essex County; Greenhalge, Judge.
Actions of tort by Mary Picarello, individually and as administratrix, respectively, against Anna M. Rodakis. Verdicts for plaintiffs for the sum of $4,200 and $800, respectively, defendant's motions for directed verdicts were denied, and she brings exceptions.
Exceptions overruled.P. A. Kiely and E. J. Marson, both of Lynn, for plaintiffs.
A. L. Hyland, of Boston, for defendant.
These are two actions of tort. The first is brought to recover compensation for personal injuries sustained by the plaintiff while riding, as a guest, in an automobile operated by her sister, the defendant. The second action is for consequential damages. The cases were tried together to a jury. At the close of the evidence the defendant moved in each case for a directed verdict. The motions were denied and the defendant excepted. The only question is whether there was evidence of gross negligence warranting the verdicts which were returned for the plaintiffs. The plaintiff in the first action will hereinafter be called the plaintiff.
Proof of gross negligence on the part of the defendant is essential to recovery. See Crowley v. Fisher, 284 Mass. 205, 206, 187 N.E. 608. While the testimony of the defendant tended in some important respects to contradict that of the plaintiff, we must consider the evidence in its aspect most favorable to the latter. Thus considered, the jury would have been warranted in finding, in substance, the following facts: The plaintiff was riding in the automobile operated by the defendant and was seated with her on the front seat. They started from the defendant's home in East Saugus about 9 A. M. intending to drive to the home of a friend in Norwood. As they approached Boston the defendant drove slowly. Just before they turned into the Fenway, so called, in Boston, the defendant lighted a cigarette. As they entered the Fenway the speed at which the automobile was driven was not over fifteen miles an hour. Up to this point the defendant had been driving the vehicle in a careful and proper manner. As they entered the Fenway she increased the speed of the automobile in a distance of four hundred feet to about forty-five miles an hour. At this point ashes dropped from the cigarette she was smoking onto her new dress. Without diminishing the speed of the automobile, she took her right hand off the wheel and looked down at her dress for three seconds while brushing the ashes off, holding the wheel in the meantime loosely in her left hand. The plaintiff turned to see what the defendant was doing and when she looked toward the front of the automobile again a tree was almost in front of them, and she ‘yelled’ at the defendant, ‘Look out, Annie,’ and then the accident ensued. The automobile turned off the road and ‘skun by a tree and hydrant.’ It continued on for over two hundred feet, its speed increasing to about fifty miles an hour, and struck a tree which was located two feet from the edge of the road. When the defendant saw the vehicle go off the road she did not apply the brakes but kept her foot on the accelerator ‘steady.’ The highway is about thirty-nine and seven tenths feet wide and has a hard improved asphalt surface with no curbstone. There is a slight curve in the road some distance back of the point of the accident amounting to about three feet in every hundred feet. The collision of the automobile with the tree was head on and the impact was violent. The automobile was in good mechanical condition at the time of the accident.
‘Although the distinction between gross negligence and ordinary negligence can be stated in general terms, it is often exceedingly difficult to draw the line in actual practice.’ Quinlivan v. Taylor (Mass.) 10 N.E.2d 96. Meeney v. Doyle, 276 Mass. 218, 219, 177 N.E. 6. In the cases before us it cannot be said as in Lynch v. Springfield Safe Deposit & Trust Co. (Mass.) 200 N.E. 914, 915, that ‘There is no evidence of * * * voluntary incurring of obvious risk’; nor as in Quinlivan v. Taylor, supra, 10 N.E.2d 96, that ‘At no time did the defendant allow his attention to be diverted from the business of driving or go out of his way to incur risk.’ The facts which could have been found in the instant cases more nearly approximate those in the case of Crowley v. Fisher, 284 Mass. 205, at page 207, 187 N.E. 608, 609, where it is said: ‘But the jury could have found that the accident resulted from the defendant's loss of control of the automobile owing to his lack of...
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Peck v. Garfield, 88-1157
...Mass. 61, 106 N.E.2d 427 (1952); Dinardi v. Herook, 328 Mass. 572, 105 N.E.2d 197 (1952) (and cases cited therein); Picarello v. Rodakis, 299 Mass. 33, 11 N.E.2d 470 (1937). While we believe that this is a close question, we hold that there was enough evidence of gross negligence to submit ......