ISABEL R. GARDNER vs. GEORGIA RENTON.

CARROLL, J. The plaintiff was injured while riding in an automobile, owned by the defendant, by reason of its collision with an automobile belonging to one Wonson. The plaintiff was the defendant's guest, on a motor trip from Gloucester to the White Mountains on October 10, 1925. They were accompanied by friends travelling in the Wonson automobile. It had been arranged that the defendant's car was to follow the Wonson car as no one in the Renton car knew the road. Soon after leaving Gloucester snow began to fall to such an extent that it became necessary to stop the Renton car every fifteen or twenty minutes to clean the wind shield as the automatic wiper did not work because of the heavy snow. This continued up to the time of the accident. The last time the Renton automobile was stopped for this purpose was about twenty minutes before the accident.

The plaintiff testified that the wind shield became covered with snow so that no one could see through it; that there was some conversation about stopping to clean the wind shield; that the Renton car signalled the Wonson car by "tooting" the horn; that after the horn was "tooted" the Renton car maintained the rate of speed of about thirty-five miles an hour; that sitting in the rear seat she could see the Wonson car through the side window. There was evidence that the Renton car came into collision with the Wonson car, which was standing still on the right of the way, striking it in the rear with sufficient force to bend its rear axle and to cut the front tires of the Renton car, to break its searchlight and wind shield, and to bend its mudguard. The driver of the Renton car testified: "I said ... we will stop right behind Mr. Wonson's car, that is what I thought, I don't know that I said it, and I thought I was going to be able to stop approximately behind him . . . the distance . . . looked more . . . than it really was between the two cars

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and when I saw . . . that he was stopping I took my foot off the gas and started to put the brake on and suddenly I saw we were getting too near and then I pushed it hard . . . so I jammed my brake on and turned the wheel to the left and we hit." There was evidence that the defendant's car was moving at the rate of twenty or twenty-five miles an hour and that the Wonson car stopped near a curve in the way. The jury found for the defendant.

The judge instructed the jury: "I am requested, Mr. Foreman and Gentlemen, to read a statement which I will read as a fair statement of the law applicable to the facts, if you find the facts. If the jury find that the defendant's automobile was proceeding along the road at a rate of speed of twenty to twenty-five miles per hour and in coming to the turn of the road the operator saw the Wonson automobile standing in the road ahead and the contact took place because the operator of the defendant's automobile misjudged the distance or did not turn to the left soon enough, such conduct on the part of the operator is not gross negligence and the plaintiff cannot recover in this case even though she was herself in the exercise of due care. Perhaps that emphasizes again the matter of gross negligence because it is gross negligence alone for which the plaintiff can recover." To this instruction the plaintiff excepted. The plaintiff argues that this instruction was a charge on the facts and erroneous in law.

The jury were told, in effect, that the instruction on the law was applicable only if they found the facts to be as stated. The judge made no statement that the facts were as he described them. He plainly said that, if the jury found the facts as mentioned, then the defendant was not guilty of gross negligence. There was no opinion expressed by the judge on the weight or effect of the evidence nor any intimation as to who should prevail on any issue of fact. The instructions were not erroneous in law. If the driver of the defendant's car was as a matter of fact going at the rate of twenty or twenty-five miles an hour and came to a turn in the road and the collision occurred because she misjudged the distance or did not turn to the left soon enough, such conduct

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was not as matter of law gross negligence. The jury might have found other facts which would warrant them in finding gross negligence on the part of the driver; but they could have found that the facts were as stated in the instruction excepted to, and if they so found, there was no gross negligence. Altman v. Aronson, 231 Mass. 588, 591. Marcienowski v. Sanders, 252 Mass. 65. Bertelli v. Tronconi, 264 Mass. 235, and cases cited. Forman v. Prevoir, 266 Mass. 111.

It appeared that an answer by the plaintiff to an interrogatory propounded by the defendant was read at the trial. In this interrogatory she was asked to describe fully what happened at the time of the accident. She answered, describing the occurrence in detail, stating the facts immediately preceding the collision, saying that the Wonson car had stopped, that the driver of the Renton car being "unable to see it in time to check her car, crashed into it with great force." On cross-examination the plaintiff was asked: "I am asking you why, if you considered it important in this case that you did see the car and had mentioned it, how it happens you didn't put it in the answer" She answered "I told the lawyer." The plaintiff excepted. The plaintiff, not having said in her answers to the interrogatories that she saw the Wonson car, could be asked on cross-examination why she omitted to refer to it, in view of her testimony at the trial that she saw the Wonson car through the side window of the Renton car. It was at least within the discretion of the judge to admit the evidence.

We see no error in the conduct of the trial.

Exceptions overruled.