Winslow v. Tibbetts, s. 5466-5468.

• Decision Date: 25 October 1932
• Docket Number: Nos. 5466-5468.,s. 5466-5468.
• Citation: 162 A. 785
• Parties: WINSLOW v. TIBBETTS (three cases).
• Court: Maine Supreme Court

162 A. 785

WINSLOW

v. TIBBETTS (three cases).

Nos. 5466-5468.

Supreme Judicial Court of Maine.

Oct. 25, 1932.

Exceptions from Superior Court, Cumberland County.

Two actions by Bert H. Winslow and a third action by Clara L. Winslow against Grace L. Tibbetts. Verdicts for defendant, and plaintiffs bring exceptions.

Exceptions overruled.

Argued before PATTANGALL, C. J, and DUNN, STURGIS, BARNES, and THAXTER, JJ.

Hinckley, Hinckley & Shesong, of Portland, for plaintiffs.

Verrill, Hale, Booth & Ives, of Portland, for defendant.

STURGIS, J.

These actions are brought to recover damages allowed to have resulted from the negligence of the defendant while driving an automobile in which the plaintiffs were riding as guests. At the close of the evidence, the presiding justice directed verdicts for the defendant. Exceptions were reserved.

There seems to be no serious controversy as to the material facts involved. In the forenoon of August 23, 1931, a Studebaker automobile driven by the defendant left the traveled part of the highway in the town of Phillipston, Mass, ran along the shoulder of the road, struck a telephone pole, and was wrecked. The plaintiffs, who are husband and wife and were riding in the rear seat, were both Injured.

The road where the accident occurred was practically straight, and slightly down grade. Its surface was macadamized for twenty-four feet, and covered with coarse gravel on the shoulders. It was unobstructed and in good repair. The automobile was not old, and, so far as the evidence discloses, was free from mechanical defects and equipped with sound and properly inflated tires. The shoulders of the road were seven feet wide, and the telephone pole which was struck stood two feet farther out. Driving along thirty or forty miles an hour, the defendant suddenly exclaimed, "I can't hold this car in the road." There is evidence that the automobile was then traveling on the shoulder of the road, and the collision with the pole followed almost immediately.

It is elementary law that the rights of the plaintiffs to recover are controlled by the law of the place where the injuries were received, and the law of the jurisdiction where relief is sought determines the remedy and its incidents, such as pleading, practice, and evidence. Frost v. C. W. Cone Taxi & Livery Company, 126 Me. 409, 139 A. 227; Owen v. Roberts, 81 Me. 439, 17 A. 403, 4 L. R. A. 229; Levy v. Steiger, 233 Mass. 600, 124 N. E. 477; Connecticut, etc, Co. v. Maine Cent. Railroad, 78 N. H. 553, 103 A. 263; Central Vermont R. Co. v. White, 238 U. S. 507, 35 S. Ct. 865, 59 L. Ed. 1433, Ann. Cas. 1916B, 252.

It is in evidence, and assented to by counsel as the law of these cases, that, under the Massachusetts rule, the burden was upon the plaintiffs to establish the gross negligence of the defendant as held in Massaletti v. Fitzroy, 228 Mass. 487, 118 N. E. 168, L. R. A. 1918C, 264, Ann. Cas. 1918B, 1088. The deflnition of that gross negligence, also accepted in these cases, as stated in Altman v. Aronson, 231 Mass. 588, 121 N. E. 505, 506, 4 A. L. R. 1185, is:

"Negligence, without qualification and in its ordinary sense, is the failure of a responsible person, either by omission or by action, to exercise that degree of care, vigilance and forethought which, in the discharge of the duty then resting on him, the person of ordinary caution and prudence ought to exercise under the particular circumstances. It is a want of diligence commensurate with the requirement of the duty at the moment imposed by the law.

"Gross negligence is substantially and appreciably higher in magnitude than ordinary negligence. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care. It is very great negligence, or the absence of slight diligence, or the want of even scant care. It amounts to indifference to present legal duty and to utter forgetfulness of legal obligations so far as other persons may be affected. It is a heedless and palpable violation of legal duty respecting the rights of others. The element of culpability which characterizes all negligence is in gross negligence magnified to a high degree as compared with that present in ordinary negligence. Gross negligence is a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a person of ordinary prudence. But it is something less than the willful, wanton and reckless conduct which renders a defendant who has injured another liable to the latter even though guilty of contributory negligence, or which renders a defendant in rightful possession of real estate liable to a trespasser whom he has injured. It falls short of being such reckless disregard of probable consequences as is equivalent to a willful and intentional wrong. Ordinary and gross negligence differ in degree of inattention, while both differ in kind from willful and intentional conduct which is or ought to be known to have a tendency to injure."

This doctrine of gross negligence is not recognized as a part of the law of this state. Prinn v. De Rice, 129 Me. 479, 149 A. 580. It is because the locus of the causes of action is Massachusetts that the law of that commonwealth is here made the rule of recovery.

The plaintiffs do not and cannot contend that the facts in evidence account, with any reasonable degree of certainty, for the defendant's failure to hold her car on the macadam surface of the highway, retain control over it, and avoid collision with the telephone pole. As is said on their brief, "The guest can not prove the exact cause of the accident." No one saw it outside the occupants of the car. The defendant, driver of the ear and absent from the trial on account of illness, did not testify. The passengers can throw no light on the occurrence. It remains unexplained.

The plaintiffs, however, invoke the application of the doctrine of res ipsa loquitur and cite Chaisson v. Williams, 130 Me. 342, 156 A. 154, 156, in which this court on proof, which remained unexplained, that the defendant's automobile left the highway, ran into the woods and crashed into the stump of a tree, held that the doctrine applied and the negligence of the defendant might be inferred.

In Chaisson v. Williams, however, "gross negligence" was not an issue. The negligence to which the doctrine of res ipsa loquitur was applied was a breach of the duty owed by the driver of an automobile to his guest under the law of Maine and as there defined in these words: "An individual owning or operating an automobile must, for the safety of his guest in the vehicle, exercise in his own conduct 'ordinary care,' which is that degree of care * * * a person of ordinary intelligence and reasonable prudence and judgment—ordinarily exercises under like or similar circumstances."

Such a breach of duty is at most "ordinary negligence" and substantially and appreciably lower in magnitude than "gross negligence" as already defined in Altman v. Aronson, supra.

Res ipsa loquitur is a rule of evidence which warrants, but...