Fedorowicz v. Szwanke

42 Mass. App. Dec. 111

• Court: Massachusetts District Court, Appellate Division
• Decided: November 21, 1968
• Docket: No. T-15746
• Status: Published

Opinion

Gillen, J.

This is an action of tort remanded to the Municipal Court of the City of Boston for trial in which the plaintiffs seek to recover for injuries and damages suffered as a result of the alleged gross negligence of the defendants in the operation of an automobile driven by the defendant, Joseph Szwanke, in which motor vehicle the plaintiff, John Fedorowicz, Jr., was a guest. The father of the plaintiff, John Fedorowicz, seeks to recover for consequential damage resulting from the alleged gross negligence.

The only question before us is whether the finding of the trial judge, that the gross negligence of the defendant, Joseph Szwanke, caused the plaintiff’s injuries and damages was warranted. There was evidence that while traveling on a public way in Milton on August 23, 1964, at about 3:05 a.m., the motor vehicle operated by the defendant, Joseph Szwanke, collided with a tree that was off the road. It appeared from the evidence that, Joseph Szwanke, on the morning in question was operating his father’s motor vehicle and was on his way home. At the time of the accident there were two people in the front seat with the operator.

The driver was seventeen years of age. On that morning the roads were wet, it was misty and there was a light fog. The head lights on the motor vehicle were on; the night was dark and aside from the light furnished by the head lights there was no light on the street. There was evidence that the road had reverse curves.

There was further evidence the motor vehicle was traveling at a speed of fifty miles an hour; that at one section the road curves to the left and while negotiating this curve the right rear wheel began to skid in the sand and soft shoulder of the roadway. There was evidence the operator steered in the direction of the skid between two trees off the road and the motor vehicle hit a third tree. All three people sustained injuries.

Jambs F. Feeley of Boston for the plaintiff William M. Shaughnessy of Boston for the defendant

John Fedorowicz testified that the posted speed limit was thirty-five miles per hour; that prior to the accident he asked the operator “to take it easy”. That the vehicle skidded from the left hand side of the road to the right hand side.

The facts in this case closely resemble those in Dombrowski v. Gedman, 299 Mass. 87, where it was held that there was gross negligence.

The operator in the instant case was grossly negligent in the operation of the motor vehicle. Hastings v. Flaherty, 321 Mass. 368. Connor v. Mason, 306 Mass. 553. Desroches v. Holland, 285 Mass. 498. Richards v. Donahue, 285 Mass. 19. Connors v. Boland, 282 Mass. 518.

The order is report dismissed.