Souza v. Mello

• Decision Date: 27 December 1939
• Parties: SOUZA v. MELLO. DUARTE v. SAME (tow cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

304 Mass. 552

24 N.E.2d 516

SOUZA

v.MELLO.

DUARTE

v.SAME (tow cases).

Supreme Judicial Court of Massachusetts, Bristol.

Dec. 27, 1939.

Exceptions from Superior Court, Bristol County; J. A. Sheehan, Judge.

Actions by Dorothy Souza for personal injuries, by Amelia Duarte for personal injuries, and by Manuel Duarte, Jr., for consequential damages, for injuries to his wife, against Elizabeth R. Mello. The jury returned verdicts for plaintiffs and the trial judge reserved leave to enter a verdict for defendant in each case but denied defendant's motion for verdict and defendant excepted.

Exceptions sustained and judgment entered for defendant in each case.J. Lipsitt and E. M. Kanter, both of New Bedford, for plaintiffs.

S. E. Bentley, of New Bedford, for defendant.

COX, Justice.

The ground for recovery in these three cases is that the driver of the defendant's truck was grossly negligent. The first two plaintiffs named were riding as ‘guest passengers' in the truck, and the plaintiff in the third case sues for consequential damages, his wife being the plaintiff in the second case. The defendant duly excepted to the denial of her motion for a directed verdict in each case. The jury returned verdicts for the plaintiffs. The trial judge duly reserved leave to enter a verdict for the defendant in each case; thereafter he denied the defendant's motion that verdicts be entered, and the defendant excepted.

The only evidence in the bill of exceptions relating to the issue of gross negligence is as follows: About 6 P. M. on October 16, 1934, the defendant's truck was travelling in a westerly direction on the northerly half of the principal highway between Cape Cod and New Bedford. A large oil truck headed in a westerly direction, was standing on the side of the highway with its left rear four or five feet upon the travelled portion of the way, which was twenty-four feet wide and of tarvia construction. The plaintiff Amelia Duarte, who was sitting in the body of the defendant's truck on a box located behind the seat of the driver, was facing in the direction in which the truck was proceeding, with her knees about two inches from the back of the seat. The ‘defendant's truck was travelling westerly over fifty miles an hour while passing an ice cream stand located about three quearters of a mile east of the place where the accident occurred and at that time he [the operator] turned around and asked the plaintiff, Amelia Duarte, if she wanted some ice cream, that the operator of the defendant's truck while travelling...