Pilgrim v. MacGibbon

• Decision Date: 24 February 1943
• Parties: PILGRIM v. MacGIBBON. WHITE v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

313 Mass. 290

47 N.E.2d 299

PILGRIM

v.MacGIBBON.

WHITE

v.SAME.

Supreme Judicial Court of Massachusetts, Middlesex.

Feb. 24, 1943.

Report from Superior Court, Middlesex County; Donahue, Justice.

Actions of tort by Ethel Pilgrim and by Elizabeth White against David MacGibbon for injuries sustained in an automobile accident. Verdicts for plaintiffs and under leave reserved, verdict for defendant was entered in each case. On report.

Ordered that judgment be entered for plaintiffs on the verdicts.

Before FIELD, C. J., and DONAHUE, QUA, COX, and RONAN, JJ.

E. V. Keville, of East Cambridge, for plaintiff Pilgrim.

R. H. Peacock, of Boston, for plaintiff White.

J. P. Sullivan, of Boston, for defendant.

COX, Justice.

This is a report of two actions of tort, tried together to a jury, to recover damages for personal injuries sustained on August 30, 1938. Verdicts were returned for the plaintiffs, but under leave reserved a verdict for the defendant was entered in each case. If there was error in the entry of these verdicts, the verdicts of the jury are to stand. Otherwise, the verdicts as entered are to stand. The cases were submitted to the jury on the third counts, each of which alleges that the plaintiff, while riding as a passenger and guest in a motor vehicle owned and operated by the defendant in the Province of Nova Scotia, Canada, was injured by reason of the defendant's gross negligence or wilful and wanton misconduct.

The Nova Scotia motor vehicle act, St.1932, c. 6, § 183, provides, as far as material: ‘No person transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury * * * in case of accident, unless such accident shall have been caused by the gross negligence or wilful and wanton misconduct of the owner or operator of such motor vehicle and unless such gross negligence or wilful and wanton misconduct contributed to the injury * * * for which the action is brought.’ No question is raised that the plaintiffs were not guests within the meaning of this statute, and it is not contended that there was any evidence of wilful and wanton misconduct or that the plaintiffs were guilty of contributory negligence. The only question for determination is whether the trial judge was right in entering verdicts for the defendant on the ground that, as matter of law, there was no evidence that gross negligence of the defendant contributed to the plaintiffs' injuries.

‘In determining this question we are bound by the law of * * * [Nova Scotia] in so far as that law establishes the standard of care. If by rule of law in * * * [Nova Scotia] a given set of facts does or does not constitute [gross] negligence we are bound by that rule as to that set of facts. Smith v. Brown, 302 Mass. 432, 433, 19 N.E.2d 732;Stiles v. Wright, 308 Mass. 326, 330, 32 N.E.2d 220. But where the law of * * * [Nova Scotia] goes no further than to lay down the general standard of * * * care * * * under the circumstances, while we are bound to observe that standard, we must determine for ourselves in accordance with our own law of procedure whether there is sufficient evidence to take the case to the jury on the question whether the defendant conformed to the standard.’ Peterson v. Boston & Maine Railroad, 310 Mass. 45, 47, 48, 36 N.E.2d 701, and cases cited. ‘Where by the law of the place of wrong, the liability-creating character of the actor's conduct depends upon the application of a standard of care, and such standard has been defined in particular situations by statute or judicial decision of the law of the place of the actor's conduct, such application of the standard will be made by the forum.’ Am.Law Inst. Restatement: Conflict of Laws, § 380(2). Beale, Conflict of Laws, § 3801.1. See Holland v. Boston & Maine Railroad, 279 Mass. 342, 344, 181 N.E. 217;Jackson v. Anthony, 282 Mass. 540, 545, 185 N.E. 389;Fortein v. Delaware, Lackawanna & Western Railroad, 90 N.J.L. 137, 141, 100 A. 194;Tobin v. Pennsylvania Railroad, 69 App.D.C. 262, 100 F.2d 435, 439. Our attention has been called to a decision of the Supreme Court of Nova Scotia, Murray v. McCulloch, [1941] 3 D.L.R. 42, in which the statute in question was considered. An appeal from this decision was dismissed with costs in the Supreme Court of Canada by a decision reported sub nomine McCulloch v. Murray, [1942] 2 D.L.R. 179.

The evidence, in its aspects most favorable to the plaintiffs (Brightman v. Blanchette, 307 Mass. 584, 589, 30 N.E.2d 864), would have warranted the jury in finding the following facts: The day before the plaintiffs were injured they had ridden from New Glasgow to Halifax, a distance of about eighty-five miles, in the defendant's automobile. Mrs. MacGibbon was with them. It had been arranged that they were to visit in Halifax and return to New Glasgow early the next evening, as the defendant had something he wished to do there that evening. They spent the night in Halifax, and on the next day a Mrs. Harper, with whom they were staying, suggested that they take a ‘little’ trip. The defendant did not wish to go and said that ‘they’ had promised to get started home in the early afternoon. The trip, however, was taken, and they did not get back to Mrs. Harper's until about 5:30 P. M. The defendant was very anxious to leave for New Glasgow at once, but Mrs. Harper insisted that they stay for supper, which they did. The defendant's wife told him that there was no sense in hurrying, and that if Mrs. Harper wanted them to stay for supper, she thought they should. ‘It was settled right there.’ They finally left for New Glasgow between 7:30 and 7:45 P. M., when it was ‘growing dusk,’ the defendant operating the automobile. The weather was cloudy and overcast, and when they were about ten or fifteen miles from where the accident occurred, it started to rain. It was a heavy drizzle. The surface of the road was wet, and although the automobile was equipped with windshield wipers that were in working order, they were not in operation.

For about five minutes after leaving Halifax the defendant was driving at about thirty-five miles an hour in a district that was thickly settled and where there were intersecting streets. Thereafter, the speed was increased to about forty miles an hour and this continued for about ten miles or so. For two or three miles before reaching the place of the accident, the road was ‘very curvy.’ The speed was about fifty-five or sixty miles an hour. The road was macadam, approximately eighteen feet wide, with gravel shoulders that were about three feet wide. It was growing dark, and the lights on the automobile were lighted. During these last two or three miles the automobile, when taking the turns, would swerve, and as these miles were being traversed, the three women remonstrated with the defendant as to the manner in which he was operating the automobile. Mrs. MacGibbon told him not to drive so fast, and he replied that he was driving the automobile. The plaintiff White told him that she was very familiar with the roads and that they were very curvy, and to ‘plaease go slow.’ He made no reply to her, but just kept on driving ‘fast.’ When the automobile neared the place of the accident, it swerved from side to side as it went around a curve, and Mrs. MacGibbon asked the defendant to slow down. When he came around a second curve, he turned his head to the right to make some remark, there was another curve, and ‘he just went right around it and the car left the road and turned over 3 times and landed on its 4 wheels.’ The automobile swerved first to the left and then to the right, and then the defendant exclaimed: ‘Oh, Oh.’ When the defendant turned his head, the speed of the automobile was approximately sixty miles an hour. He turned his head directly around to his wife who was sitting ‘well’ in the middle of the rear seat, and was in the process of turning his head back to the front as the automobile swerved, went off the road and into a field. There was a drop of ‘possibly four’ feet from the road to the adjoining land, and the automobile travelled about one hundred yards after it left the road. The defendant admitted that the only time he had ever been over the road was on the day before the accident, that his wife did provoke him to some extent when she spoke to him about his driving, and that she ‘drove from the back seat.’

The case of Murray v. McCulloch, [1941] 3 D.L.R. 42, supra, was one in which the plaintiff, a gratuitous passenger, sought to recover damages for personal injuries sustained by reason of the gross negligence or wilful and wanton misconduct of the defendant who was operating the automobile in which the plaintiff was riding. It was decided, according to the report of the case, on April 16, 1941, although the defendant, in the case at bar in his brief, states that it was decided on August 16, 1941. Questions were submitted to the jury which answered that the defendant's gross negligence caused the accident, that his gross negligence consisted of reckless driving, and that the defendant was also guilty of wilful and wanton misconduct in that he...