O'Toole v. Magoon

• Decision Date: 28 October 1936
• Citation: 4 N.E.2d 357,295 Mass. 527
• Parties: O'TOOLE v. MAGOON (two cases). SETTEVEDEMIO v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

295 Mass. 527

4 N.E.2d 357

O'TOOLE v. MAGOON (two cases).

SETTEVEDEMIO v. SAME.

Supreme Judicial Court of Massachusetts, Worcester.

October 28, 1936

Actions of tort by Ann O'Toole, by next friend, by Mary O'Toole, and by Ann Settevedemio for negligence against Mark Magoon. From an order by the Appellate Division dismissing a consolidated report by the trial court which found for plaintiffs in the sums respectively of $154, $803 and $183, defendant appeals.

Order dismissing report affirmed.

Appeal from Appellate Division of District Court, Western District Worcester County; Buttrick, Judge.

S. B Milton, C. C. Milton, and R. C. Milton, all of Worcester, for appellant.

A. J. Kittredge, of Clinton, for appellees.

RUGG Chief Justice.

These are actions of tort in which the respective plaintiffs seek to recover compensation for personal injuries arising out of a motor vehicle accident. The several plaintiffs were guests of the defendant in a motor vehicle operated by him, and allege that their injuries were caused by his gross negligence. The answer of the defendant in each case was a general denial and a plea that the plaintiff was guilty of contributory negligence. The cases come before us on a single consolidated report by the trial judge, which contains all of the evidence material to the issues now raised. Lumiansky v. Tessier, 213 Mass. 182, 188, 99 N.E. 1051 Ann.Cas.1913E, 1049; Barrell v. Globe Newspaper Co., 268 Mass. 99, 167 N.E. 910; Commonwealth v. McKnight, 289 Mass. 530, 195 N.E. 499. At the close of the evidence the trial judge ruled in each case that the plaintiff, being a gratuitous passenger in the defendant's motor vehicle, could recover only on proof of the gross negligence of the defendant, and that as matter of law there was no evidence that the defendant was guilty of wanton and willful misconduct; and refused to rule that there was no evidence as matter of law that the defendant was grossly negligent, or that the plaintiff was contributory negligent as matter of law. The trial judge also made findings of fact of the tenor following; ‘ * * * On September 8, 1934, the plaintiff, with other persons, was a guest of the defendant, riding in an automobile operated by the defendant. The party left Clinton at about eight o'clock P. M., going to Lowell to a dance. They left Lowell for Clinton about 10:30 P. M., the defendant still the operator of the car. At different times Ann Settevedemio, one of the passengers of the automobile, said to the defendant, ‘ Take your time, Mickey.’ The night was very dark and rainy-so much so that except for the space in front of the driver kept clear by the windshield wiper, there was very little visibility. The speed of the automobile was between twenty and twenty-five miles an hour. The automobile was being operated on a macadam surfaced highway, wet and slippery, and owing to the water on the highway the distance thrown by the headlights was very much curtailed. Electric street car rails were in the center of the highway, coming in from the side of the road about 150 feet from where the accident happened, which was near the center of Chelmsford. The defendant testified he had been over the highway before and was familiar with the general layout. A short time before the accident occurred * * * Ann Settevedemio, who was sitting in the rear seat said to the defendant, ‘ young and unsophisticated.’ The defendant thereupon took his right hand from the wheel, placed it on the back of the adjoining seat, turned his head toward * * * Ann Settevedemio and repeated the words, ‘ Young and unsophisticated.’ The automobile then zigzagged. the road, Mickey. 'Thereupon the defendant turned toward his original position with both hands on the wheel and apparently attempted to regain control of the automobile which at that time was in the car tracks in the center of the road, the tracks being somewhat higher than the surface of the highway. The automobile continued without any diminution of speed, narrowly missing a tree on the right hand side of the road, and about ten feet beyond crashed head on into a pole which was also on the right hand side of the road about a foot or so from the traveled part of the way with such force that it was necessary to use a wrecking truck to pull the automobile from the post. I find that the defendant was grossly negligent in that he heedlessly and palpably violated a legal duty he owed the plaintiffs.' Findings were made and damages assessed in favor of each plaintiff. The defendant...