Stowe v. Mason

• Decision Date: 28 February 1935
• Parties: STOWE v. MASON. SAME v. UNION FREIGHT RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

289 Mass. 577

194 N.E. 671

STOWE v. MASON.

SAME v. UNION FREIGHT RY. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

February 28, 1935

Exceptions from Superior Court, Suffolk County; Donnelly Judge.

Actions by Dorothy A. Stowe against Sam A. Mason, II, and the Union Freight Railway Company. From judgments rendered after trial without jury in Superior Court in favor of plaintiff for $40,000 against Sam A. Mason, II, and in favor of the Union Freight Railway Company against plaintiff, plaintiff and defendants bring exceptions.

Exceptions overruled.

R. J. Cotter and R. J. Walsh, both of Boston, for plaintiff.

S. Abrams, F. P. Ryan, and N. F. Fermoyle, all of Boston, for defendant Mason.

E. J. Phillips, of Boston, for defendant Union Freight Ry. Co.

QUA Justice.

On September 10, 1932, between 11 p. m. and 12 midnight the plaintiff was one of five passengers in an automobile owned and driven by the defendant Mason on Atlantic Avenue in Boston. The entire party, including Mason, consisted of three men and three women. They had just left the ‘ Show Boat,’ which appears to have been an establishment where dancing was enjoyed and drinks were served. Atlantic Avenue, a main thoroughfare in the business part of the city, runs north and south and is seventy-eight feet wide between curb stones. In Atlantic Avenue is a structure supported upon columns in the travelled part of the way which carries elevated tracks of the Boston Elevated Railway. There was evidence that the clear space between the columns and under the elevated structure was twenty-two feet in width. In this space beneath the structure and at the level of the street surface were located two tracks of the defendant Union Freight Railway Company. On the more westerly of these tracks in Atlantic Avenue there was standing at the time of the accident out of which these actions arise a string of four freight cars in the control of the defendant railway. There was evidence that the most southerly of these cars projected across the northerly part of Central Street, a way which intersected Atlantic Avenue at or near the place of the accident. Mason was driving northerly on Atlantic Avenue. The accident occurred as the result of the Mason automobile striking the train which was standing on the tracks of the defendant railway. The plaintiff, who was riding with three others in the rear seat, was seriously injured.

The cases were heard together by a judge of the Superior Court without jury and resulted in a finding for the plaintiff against the defendant Mason in the sum of $40,000 and a finding for the defendant Union Freight Railway Company. All three parties claim that there was error and have joined in a consolidated bill of exceptions.

1. As the plaintiff was riding in Mason's automobile as a guest, we first deal with the question whether there was evidence to support a finding, necessary under our decisions to the plaintiff's recovery against Mason, that Mason's gross negligence caused the accident. If the judge believed the evidence most favorable to the plaintiff and rejected evidence to the contrary, he could have found the following facts: Mason, driving his automobile on the right-hand side of Atlantic Avenue, outside the elevated structure at a speed of forty to forty-five miles an hour, passed on the right another automobile which was proceeding in the same direction under the structure and then ‘ swung in’ between the elevated uprights in front of the other automobile on to the tracks of the Union Freight Railway Company. Mason's automobile, continuing at the same or a greater rate of speed, ‘ was going from one side of the street to the other in a kind of zigzag fashion’ and continued to zigzag on both of the center rails (or according to the plaintiff's testimony ‘ practically from the right-hand to the left-hand of the roadway’ under the structure) until it came within a car and a half length of the most southerly freight car, when ‘ all of a sudden’ it turned sharply to the right and then sharply to the left and then a little to the right, and the left rear end of the automobile struck the southeast corner of the first (i. e. most southerly) freight car, broke off the iron stirrup or step at the corner of the car (which after the accident was found eighty-nine feet away in a northerly direction), ploughed along the side of that first car and finally wedged under the first and second cars near their point of coupling so firmly that a locomotive had to be used to pull it free. The freight cars were clearly illuminated by a street light. Mason (by his own admission) saw them when he was two hundred feet away. Just before the accident there had been some bickering among the members of the party and something had been said about ‘ walking home.’ While the automobile kept gaining speed, Mason looked over his shoulder at one of the passengers on the rear seat and said ‘ Who is walking home?’ The automobile swung a little. As Mason turned, the plaintiff shouted to him, ‘ Sam, watch out.’ He turned and went on the left-hand tracks, and the lights shone on the car, which was twenty-five feet away. The automobile turned slightly to the right. The plaintiff threw up her hands and ‘ that's all she knew.’ In addition to the foregoing there was much evidence that various members of the party had been drinking and that when taken to a hospital immediately after the accident, Mason was under the influence of liquor; that he ‘ could walk all right, but was a little unsteady’ ; that his talk was ‘ rather thick.’ Mason testified that he had been over Atlantic Avenue before both day and night and ‘ knew the lie’ of the tracks under the elevated structure; that he knew the surface of the avenue was rough and irregular; that when he saw the freight car two hundred feet away in plain sight there was no reason, if he kept his course, why he should fear any contact with it; that he slipped into the rails (of the easterly or right-hand track) about twenty feet from the freight car ‘ and then he deliberately, that is not by accident, and knowing what he was doing, turned off, to the left’ ; that he did not slow down from the time he saw the freight car two hundred feet away until just before the accident. Mason contended that the accident resulted from getting caught in the tracks and trying to get out, but the judge could refuse to accept this theory as an adequate explanation of what happened. We think there was evidence of gross negligence as that term is defined in Altman v. Aronson, 231 Mass. 588, 121 N.E. 505, 4 A.L.R. 1185; Learned v. Hawthorne, 269 Mass. 554, 169 N.E. 557; Meeney v. Doyle, 276 Mass. 218, 177 N.E. 6; Green v. Hoffarth, 277 Mass. 508, 178 N.E. 828; Caldbeck v. Flint, 281 Mass. 360, 183 N.E. 739; Crowley v. Fisher, 284 Mass. 205, 187 N.E. 608.

The defendant Mason places much reliance upon Richards v. Donohue, 285 Mass. 19, 188 N.E. 389, but we think that case is distinguishable. There was in that case no evidence that the defendant was under the influence of liquor. That accident happened, apparently, in a sparsely settled district, not in a business section in a street encumbered with the posts of an elevated railway with the space between them partly filled with cars. The evidence in that case tended to show a negligent error of judgment in passing another automobile on a curve rather than that crass indifference to duty which constitutes gross negligence.

2. Ther is nothing in the evidence which compelled the judge to rule as matter of law, against the burden of proof, that the plaintiff abandoned all care for herself to the care of the driver or that she was guilty of...