Swistak v. Paradis

Decision Date26 November 1934
Citation192 N.E. 920,288 Mass. 377
PartiesSWISTAK v. PARADIS.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Exceptions from Superior Court, Bristol County; Walsh, Judge.

Action of tort by Charlotte I. C. Swistak against Lionel Paradis. Verdict for plaintiff in the sum of $650, but the trial judge, under leave reserved, ordered a verdict in favor of the defendant, and plaintiff brings exceptions.

Verdict for defendant set aside, and judgment directed to be entered for plaintiff on original verdict.

H. W. Radovsky, of Fall River, for plaintiff.

F. E. Smith, of Taunton, for defendant.

RUGG, Chief Justice.

The plaintiff seeks in this action of tort to recover compensation for personal injuries alleged to have been sustained by her through the gross negligence of the defendant while as his guest she was riding in an automobile operated by him. The jury under appropriate instructions returned a verdict in favor of the plaintiff. Under leave reserved, the trial judge later ordered a verdict in favor of the defendant. G. L. (Ter. Ed.) c. 231, § 120. The plaintiff's exception to this order brings the case here.

The testimony of the plaintiff and of the defendant in its aspect most favorable to the plaintiff would warrant a finding of these facts: The plaintiff, a girl fourteen years old, having graduated from the ninth grade of school, was attending on June 25, 1931, an outing of her class at Fairhaven Park. While there, she and a friend were invited by the defendant to ride in an automobile. The two girls were ill from dizziness and nausea. They accepted the invitation thinking the ride would relieve them. They became worse and requested the defendant to take them back to the park so that they could get out. He drove toward the park but on reaching the entrance said he desired to ride around some more. The girls both stated they were ill and wanted to get out. The defendant increased the speed of the automobile; the girls remonstrated and stated they were more ill and wanted the defendant to stop so that they could get out. Each of them said that, if he did not stop, she would jump out. The defendant said to the plaintiff: ‘Try and do it’; he slowed up to a speed of about twenty miles an hour. The plaintiff, who was sitting on the back seat, opened the door of the automobile behind the defendant without his knowledge and without warning and got onto the running board and shut the door and again stated to the defendant that she was ill from nausea and wanted him to stop; the defendant put on more speed and the plaintiff fell or slipped off the running board onto the road; as a result of the fall she became unconscious and suffered injuries. The defendant testified that he knew, when the plaintiff and her companion accepted his invitation to ride, that they were sick and suffering from nausea, and that they became worse during the ride; that when they requested him to stop at the park in order that they might alight, he continued beyond the park stating that he wanted to ride some more; that he then knew he was acting contrary to the wishes of the girls, who seemed to be more ill, and was merely satisfying his own whim and caprice.

If these were found to be the facts, the inference would be permissible that the defendant, although not aware when the plaintiff opened the door of the automobile, stepped on the running board and closed the door behind her, nevertheless knew that she was standing on the running board from the fact that she then spoke to him, told him again of her illness and repeated her request that he stop his automobile, and notwithstanding such knowledge drove on at accelerated speed, thereby causing the plaintiff to fall or slip to the ground. It may not be gross...

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18 cases
  • Pittsley v. David
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • December 2, 1937
    ...Mass. 83, 174 N.E. 264,Connors v. Boland, 282 Mass. 518, 185 N.E. 38, Curtis v. Comerford, 283 Mass. 589, 186 N.E. 585,Swistak v. Paradis, 288 Mass. 377, 192 N.E. 920, and Smith v. Axtman (Mass.) 6 N.E.2d 809; of the voluntary incurring of grave and obvious danger, as in Learned v. Hawthorn......
  • Perry v. Hanover
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • June 28, 1943
    ...259 Mass. 388, 391, 156 N.E. 712. But without discussing whether the report is fatally defective in this respect (see Swistak v. Paradis, 288 Mass. 377, 380, 192 N.E. 920), we consider the questions of law reported. There was no error in denying the ‘requests for rulings.’ 1. The first, sec......
  • Goodale v. Morrison
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • February 12, 1962
    ...Schnepel v. Kidd, 332 Mass. 137, 138, 123 N.E.2d 385. It contains enough to show that there was error in the charge. Swistak v. Paradis, 288 Mass. 377, 380, 192 N.E. 920. Realty Developing Co. Inc. v. Wakefield Ready-Mixed Concrete Co. Inc., 327 Mass. 535, 537, 100 N.E.2d 28. This is not a ......
  • Perry v. Hanover
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • June 28, 1943
    ...v. McIntosh, 259 Mass. 388 , 391. But without discussing whether the report is fatally defective in this respect (see Swistak v. Paradis, 288 Mass. 377 , 380), consider the questions of law reported. There was no error in denying the "requests for rulings." 1. The first, second, third and f......
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