Polcari v. Cardello
| Decision Date | 05 June 1944 |
| Parties | CHARLES POLCARI v. EDWARD CARDELLO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
May 2, 3, 1944.
Present: FIELD, C.
J., QUA, RONAN & WILKINS, JJ.
Negligence, Gross Motor vehicle, Use of way.
Evidence, that the operator of an automobile started it when he knew that a guest had not yet entered it and while the guest still was on the running board, and then, after proceeding thirty to forty feet, stopped so suddenly that the guest was thrown through the air over the front fender and injured, did not warrant a finding that the operator was grossly negligent.
TORT. Writ in the First District Court of Eastern Middlesex dated May 12, 1941.
On removal to the Superior Court, the case was tried before Williams, J. R. L Ryder, for the plaintiff.
R. B. Snow, for the defendant.
This action of tort for personal injuries, received by the plaintiff while a guest rider on the running board of the defendant's automobile, presents the question whether there was any evidence of gross negligence. The jury returned a verdict for the plaintiff, and the judge with the jury's assent reserved leave to enter a verdict for the defendant. A motion of the defendant that a verdict be entered in accordance with the leave reserved was allowed by the judge subject to the plaintiff's exception.
The evidence, given entirely by witnesses called by the plaintiff, showed the following: The plaintiff, aged twenty-six and the defendant, a physician of about the same age, who had been together watching a parade in Boston, late in the evening returned on foot to Salem Street, where the defendant's automobile was parked. The plaintiff started to walk home when the defendant, who had gotten into the automobile, opened the window, asked the plaintiff to get in and said he would drive him home. The plaintiff said "Yes, I will," mounted the running board to open the left rear door, and took hold of the glass in the front left window, which was open. He had just discovered that the door was locked when the defendant started the automobile. The plaintiff testified that "he started the car so fast I yelled to him, `Eddie, I am not in the car yet'"; and that the defendant made no reply, but "drove the car thirty-five or forty feet and I was still holding on and he stopped fast and I was thrown from the automobile." In his flight through the air over the left front fender the plaintiff broke off an aerial, and landed unconscious in the street about eight feet from the automobile, sustaining a fractured skull. One...
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