Semons v. Towns

• Decision Date: 02 January 1934
• Citation: Semons v. Towns, 285 Mass. 96 (Mass. 1934)
• Parties: CLARA M. SEMONS v. MARY M. TOWNS.
• Court: Supreme Judicial Court of Massachusetts

285 Mass. 96

CLARA M. SEMONS v. MARY M. TOWNS.

Supreme Judicial Court of Massachusetts, Norfolk.

January 2, 1934

May 9, 1933.

Present: RUGG, C.

J., PIERCE, WAITFIELD, & LUMMUS, JJ.

Negligence, Motor vehicle, Invited person, Contributory, In use of way.Practice, Civil, Verdict, Exceptions, Ordering of judgment by the Supreme Judicial Court.

Evidence, at the trial of an action for personal injuries, that the defendant who was the owner of an automobile but was not licensed to operate it, importuned the plaintiff, who was licensed to operate motor vehicles, to go out to drive the automobile for the defendant, to which the plaintiff consented; that the plaintiff drove the automobile during the greater part of the journey, but had nothing to say as to where they should go or how they should get there; and that the plaintiff was injured during the journey when the automobile struck a tree while against the plaintiff's objection, it was being operated by the defendant, warranted a finding that the plaintiff was riding in the automobile not simply as a guest, but for the benefit of the defendant in order to furnish to the defendant the protection of the plaintiff's license to drive and the advantage of his skill as a driver; and the plaintiff, if not guilty of contributory negligence, was entitled to recover upon proof of mere negligence on the part of the defendant.

There was further evidence at the trial above described that the defendant had had some lessons in driving; that, after a stop on the journey in question, the defendant wished to drive, to which the plaintiff agreed on condition that the defendant yield the wheel to the plaintiff at the end of a short, straight stretch of road; that when they had reached that point the defendant refused to yield the wheel; that, although the defendant was driving faster than the plaintiff approved, the plaintiff did not wish to grasp the wheel or operate the stopping mechanism, which was within his reach, while the car was moving so rapidly; that the defendant appeared to be a nervous driver, was unsteady in his handling of the steering wheel, so that the automobile to some extent went back and forth from one side of the road to the other, and was

"fond of stepping on the gas"; and that, when the driver of another automobile sounded his horn to pass from the rear, the defendant became nervous, swayed the automobile, jerked the wheel, and "turned it quick to the right," whereupon it struck the tree, despite the plaintiff's effort to stop it by pulling up the emergency brake.Held, that

(1) A finding of negligence on the part of the defendant was warranted;

(2) It could not properly have been ruled as a matter of law that the plaintiff was negligent in entering the automobile or in failing to grasp the stopping mechanism before he did, or that he was guilty of contributory negligence.

The declaration in an action for personal injuries contained a first count for negligence and a second count for gross negligence.The trial judge ordered a verdict for the defendant on the first count, to which the plaintiff alleged an exception; and denied a motion by the defendant that a verdict be ordered in his favor on the second count, to which the defendant alleged an exception.There was a verdict for the plaintiff on the second count.Neither party saved an exception to any ruling as to evidence or to any instruction in the charge to the jury.This court, having decided that the plaintiff, if not guilty of contributory negligence, was entitled to recover upon proof of mere negligence on the part of the defendant and that the evidence warranted a finding of such negligence and did not require a ruling that the plaintiff had been guilty of contributory negligence, held, that

(1)The plaintiff's exception must be sustained; (2) Since gross negligence differs from simple negligence in degree but not in kind, the verdict for the plaintiff on the second count, in which gross negligence was alleged, established that the defendant was guilty of at least simple negligence and that the plaintiff was not guilty of contributory negligence;

(3) It was not necessary for this court to consider the question, whether the evidence warranted a finding of gross negligence on the part of the defendant;

(4) Inasmuch as the measure of damages would be the same on both counts and this court had all the material facts before them after a fair trial, the defendant's exception was overruled and judgment was ordered entered for the plaintiff on the verdict pursuant to G. L. (Ter. Ed.) c.

231, Section 124.

TORT.Writ dated March 7, 1928.The action was tried in the Superior Court before Macleod, J.The amended declaration and material evidence are described in the opinion.The judge ordered a verdict for the defendant on the first count of the declaration, to which the plaintiff alleged an exception; and denied a motion by the defendant that a verdict be ordered in her favor on the second count, to which she alleged an exception.There was a verdict for the plaintiff on the second count in the sum of $2,500.

R. H. Lee, for the defendant.J. P. Manning, for the plaintiff.

WAIT, J.The plaintiff was injured while riding in an automobile owned and driven by the defendant.She sued in two counts, the first alleging negligence, the second alleging gross negligence.

At the trial there was evidence which would support findings in substance as follows: The plaintiff held a license to drive motor vehicles.The defendant had taken lessons in driving but had not obtained a driver's license.She had met the plaintiff but once before August 8, 1927, when on that day she telephoned to the plaintiff to ask her to go out and drive the defendant's automobile for her.When the plaintiff sought to decline, she begged and teased her to go and said she would repay her in some way.The plaintiff consented to go if she might drive.The defendant agreed.The plaintiff had nothing to say as to where she should go or how she should get there.They drove to an inn beyond Nantasket where they took lunch.After lunch the defendant got into the automobile and turned it.While doing so she struck an object and bent the bumper so that some repair was needed before the car could again be driven.The plaintiff got in after the bumper repair and started driving on their return trip.On the way they stopped at some woodland by the roadside.The defendant got out and induced the plaintiff also to alight.The defendant slipped into the driver's seat and, on the plaintiff's return, refused to leave it.Although the plaintiff protested, the defendant, provoked, insisted that she owned the car and could...