LUCY G. GALLUP, administratrix, vs. WESLEY C. LAZOTT.

FIELD, J. This is an action of tort to recover for the death of the plaintiff's intestate, who was riding in an automobile owned and operated by the defendant. There was a verdict for the plaintiff. The case is here upon the defendant's exceptions to the denial of his written motion for a directed verdict, and to the refusal to rule, as requested by him, that the plaintiff could not recover "unless she shows that the defendant was guilty of gross negligence," and that there was "no evidence of gross negligence" on his part.

Evidence introduced by the plaintiff tended to show the following facts: The plaintiff's intestate, Lucy B. Pollard, a mature woman, and her son were riding with the defendant as his guests from Amherst to North Adams after dark on October 27, 1928, in a large roadster which was being driven by the defendant at a rate of from forty to fifty miles an hour. The deceased sat in the middle of the seat of the roadster with her son on one side of her and the defendant at the steering wheel on the other. Each of them was rather small, and it was testified "that there was ample room" for them and that they "all sat very comfortably" in the seat. When they had travelled about fifty-five miles and were approaching a curve, with no other vehicle in sight, in either direction, the right wheel of the roadster went over the nearest rail of the trolley track, which was at the right of the highway and at a slightly higher level. The defendant tried to turn to the left, the wheels "seemed to lock," and the roadster suddenly went across the road to the left,

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through a fence and down a short incline into a meadow where it overturned, causing the death of the plaintiff's intestate. Her son, called by the plaintiff, testified that "the moment the car got on the curve . . . and before the right wheel had crossed the car track, he knew that it was impossible to make the curve," that he had been watching the speedometer all the way from Amherst and "calling off to the defendant the varying speeds at which the automobile was being operated," that there was no protest by anyone "either as to the speed at which the automobile was being operated, or as to the manner of operating the automobile" and that the deceased "was looking straight in front of her and watching the way."

The defendant testified that he did not believe that he was going more than forty miles an hour. The only explanation given by him for the automobile's leaving the travelled way and getting on the tracks was that he "must have inadvertently steered to the right."

It was agreed "that the highway . . . was a macadam surfaced highway, approximately twenty-five to thirty feet in width and that the road was entirely dry and free from snow or ice at the time . . . ." There was no evidence that any other automobile was involved in the accident, that the deceased knew how to operate an automobile or that the defendant was not an experienced and skillful driver. The jury took a view of the scene of the accident.

The rulings requested as to gross negligence were refused properly. The right to recover for death is wholly statutory. G. L. c. 229, § 5, as amended by St. 1922, c. 439, and St. 1925, c. 346, § 9. See Bickford v. Furber, ante, 94, 98. It is settled that, by its terms, the statute "requires proof only of ordinary negligence." Flynn v. Lewis, 231 Mass. 550, 555. Bergeron v. Forest, 233 Mass. 392, 399. Shapiro v. Lyon, 254 Mass. 110, 115. See Brooks v. Fitchburg & Leominster Street Railway, 200 Mass. 8, 17. Nothing that was said in Robbins v. Athol Gas & Electric Co. 236 Mass. 387, 391, is to be regarded as affecting this conclusion. The decision in that case is consistent with the result reached here. That case decided that the "death statute" did not

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enlarge the class of persons to whom some duty of care was owed. See Bergeron v. Forest, supra.

The motion for a directed verdict was denied rightly. It is not contended that the evidence did not warrant a finding of ordinary negligence on the part of the defendant. The defendant contends, however, that a verdict should have been directed for him on the ground that, as matter of law, the plaintiff's intestate was guilty of contributory negligence. The evidence of her conduct was put in as a part of the plaintiff's case and was uncontradicted. From this evidence it appeared that, while the automobile was being driven at a speed of at least forty miles an hour, - a witness for the plaintiff said "forty-five to fifty miles per hour; between forty and fifty; forty-five miles per hour," though the defendant testified "that he did not believe he was going more than forty miles per hour," - the varying speeds were called off by the son of the deceased who was watching the speedometer, and the deceased, sitting in the middle of the seat, "was looking straight in front of her and watching the way" and made no protest as to the speed or manner of operating the automobile. This evidence, even if taken at its face value (see Connors v. Cunard Steamship Co. Ltd. 204 Mass. 310, 321; Haun v. LeGrand, 268 Mass. 582, 584 and cases cited), did not require a finding that the deceased was negligent. It did not show, as a matter of law, that she voluntarily surrendered all care of herself to the caution of the driver so that his negligence was to be imputed to her, as did the injured person in Oppenheim v. Barkin, 262 Mass. 281, 283. See Griffin v. Hustis, 234 Mass. 95, 99-100; Caron v. Lynn Sand & Stone Co. 270 Mass. 340, 344, 345, 346. Nor did her failure to protest amount necessarily to negligence. Apart from speed nothing is shown as to the manner in which the automobile was being driven prior to the accident which called for any protest from her. In this respect Thorp v. Boston Elevated Railway, 259 Mass. 415, relied on by the defendant, is distinguishable. Obviously, the occurrences at the time of the accident were so nearly instantaneous that no effective warning could have been given or other act done then by the deceased to avert it.

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See Harter v. Boston Elevated Railway, 259 Mass. 433, 436. Whether, in order to exercise due care, she was bound to protest against the speed of the automobile before the accident was a question of fact for the jury. See Lambert v. Eastern Massachusetts Street Railway, 240 Mass. 495, 499. While this speed was evidence of negligence on the part of the driver, in the circumstances of this case it was not conclusive thereof. Marcienowski v. Sanders, 252 Mass. 65, 68. See also Burke v. Cook, 246 Mass. 518, 522. A fortiori, it was not conclusive that the failure of the deceased to protest, even if amounting to tacit acquiescence, was negligence. A finding by the jury that the defendant was negligent did not require a finding that the deceased also was negligent. Without entrusting herself wholly to his care she was entitled to rely somewhat upon his skill and judgment. See Chadbourne v. Springfield Street Railway, 199 Mass. 574, 576, 577.

Exceptions overruled.