Learned v. Hawthorne

269 Mass. 554

• Court: Massachusetts Supreme Judicial Court
• Decided: January 2, 1930
• Status: Published

Opinion

Pierce, J.

These are two actions of tort for personal injuries, arising out of the same accident and tried together to a jury.

The injuries were sustained by the plaintiffs while they were riding as guests of the defendant in an automobile, owned and driven by him, on Liberty Street, Springfield, Massachusetts, on the night of May 7, 1927. At the conclusion of the evidence the defendant moved for a directed verdict in each case. The motions were denied and the defendant duly excepted. The pleadings are made a part of the bill of exceptions. The defendant also excepted to certain parts of the charge, as hereinafter set forth. The jury returned a verdict for the plaintiff in each case.

All the material evidence is contained in the bill of exceptions. In their aspect most favorable to the plaintiffs’ contentions, the pertinent facts thus disclosed are in substance as follows: Liberty Street is a public highway extending northerly from Springfield toward Chicopee Falls. At the time of the accident it was a paved street and was straight for more than five hundred feet in the vicinity of the place of the accident. There was a single track 'trolley line in the center of the road, and, assuming there was a trolley car on the track, there was not room for two automobiles to pass abreast on the same side of the track. On the night of the accident the plaintiffs were invited and accepted an invitation of the defendant to take a ride with him in his automobile. The plaintiff Learned sat on the front seat with the defendant and the plaintiff Bolger sat on the back seat. It was dark when the automobile reached Liberty Street. Sitting on the left of the automobile, the defendant was driving on the right hand side of that street and the trolley track at the rate of twenty to twenty-five miles an hour and was following on the same side of the road and about fifteen feet behind another automobile which was travelling “around fifteen to twenty miles an hour.” The defendant turned out onto the trolley track to his left to pass the automobile ahead of him, and when he was abreast of it he and the plaintiffs saw an electric car lighted up about one hundred feet away coming toward them. The automobile of the defendant was lighted but he gave no signal of any kind as he tried to pass the automobile ahead. The way on the defendant’s left was perfectly clear and no traffic other than the trolley car was coming on that side of the road. After he pulled to the left and was upon the car track his automobile travelled but a few feet before the front end of it came in contact with the front end of the trolley car.

The defendant testified that he did not have to pass the automobile in front of him; that he was very close to it just before the collision, ten or fifteen feet behind, and he could have put on his brakes and stopped without hitting it if he had wanted to; that “If he had been looking before he turned out he was too close behind the other automobile to see the trolley car” and that “He was so close behind the automobile ahead that he couldn’t have seen the trolley car coming until he pulled out onto the tracks.” He further testified that on that night he knew as a fact that the street near the scene of the accident was in bad shape and that there were deep ruts near the trolley track; that the rails were below the surface of the road quite considerably, and if an automobile got caught on the car tracks and got its wheels in one of these ruts it would be a pretty difficult job to get out and “that is just what happened”; that “He did not think of the matter at all as to whether it was a dangerous thing to do to turn out from behind an automobile onto the trolley tracks when he couldn’t see what was coming”; and that “He knew that trolley cars ran through there quite often.”

A captain in the Springfield Police Department testified that he had a talk with the defendant within twenty minutes after the accident happened; that “The defendant denied driving the automobile, .". . [and] said that a fellow in the front seat was driving and that they were taking the fellow’s girl home. He told the defendant that the plaintiffs said that he was driving the automobile and asked the defendant why he didn’t know that he was driving the automobile. He asked the defendant if he was drunk. He stooped down and smelled the defendant’s breath. He could smell liquor on the defendant’s breath. The defendant told him that he had had a couple of bottles of beer. He didn’t smell any beer off his breath. It smelled more like whiskey. He got a whiskey breath from the defendant. The defendant still denied that night he was driving the automobile and denied having any more than two bottles of beer.”

The jury were instructed in part as follows: ". . . in determining whether the conduct of the defendant is proper or improper you are first to say, What would the ordinary .careful and prudent man [do] under those circumstances, how would he perform? And when you have said what his conduct would be, then you compare the conduct of the defendant with that conduct, and by that comparison you say whether the conduct in this particular case was negligent or not.” He further instructed them that, having determined the issue as to whether the conduct was that of negligence, "then you analyze the facts, as to whether the conduct, having regard to all the facts and circumstances, was a little worse than negligent; as to whether it found its place somewhere between these two1 limits that I have mentioned, — negligence and wilful, wanton and reckless conduct .... Now, if you say that he was negligent, and you say he was more than negligent, and that you would call his conduct something somewhere between negligence and wilful, wanton and reckless conduct, — you don’t need to say just where it is, but if it is somewhere between those two points, then it is gross negligence.”

In support of his exception to the use of the word "more” in the instruction above quoted, the defendant contends that the portion of the instructions which includes the adjective "more” is inconsistent with the instructions which the judge read to the jury from Altman v. Aronson, 231 Mass. 588, 591; and more particularly with the sentences of that opinion which follow the instruction given and were not read to the jury, namely: "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 wilful, 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 wilful and intentional" wrong. Ordinary and gross negligence differ in degree of inattention, while both differ in kind from wilful and intentional conduct which is or ought to be known to have a tendency to injure”; because the quoted instructions “fall far short” of the definition of gross negligence as given in Altman v. Aronson, supra, at page 593, to wit, “. . . gross negligence is the omission of even such diligence as habitually inattentive and careless men do not fail to exercise in avoiding danger to their own person or property.” As a corollary to the definition of gross negligence given in Altman v. Aronson, supra, the defendant contends, as we understand him, that that degree of negligence is a certain and definite want of due care which does not vary as the negligent conduct of a person is near or remote to ordinary negligence or to wilful or wanton misconduct.

In its practical operation there was no substantial variance between the instruction given and the definition of gross negligence as laid down in Altman v. Aronson, supra. Measured by the literal words of the definition or by the spirit thereof, it is indisputable on the defendant’s testimony alone that the jury would be warranted in finding that the conduct of the defendant was that of one who recklessly exercised no forethought, no diligence, for the safety of his guests or of himself, when in a situation which the most inattentive and careless person would recognize as pregnant with imminent peril to life, person and property. The evidence, if believed, that the defendant shortly before the accident had drunk some form of intoxicating liqpor, as manifested by his breath immediately after the accident, was proper for the consideration of the jury and relevant in their consideration of the issue of his negligence and of the degree of such want of care and diligence, should they find in his conduct a lack of ordinary care.

Without a discussion of the evidence, it is plain it could not have been ruled that either one of the plaintiffs, in the circumstances disclosed, as matter of law failed to exercise due and reasonable care for his own protection and safety. Lambert v. Eastern Massachusetts Street Railway, 240 Mass. 495. In each case the exceptions are overruled.

So ordered.