ALICE SMITH vs. LAWRENCE MURPHY.

RONAN, J. This action of tort is here upon exceptions of the plaintiff to the action of the judge, under leave reserved, in setting aside a verdict in her favor and ordering the entry of a verdict for the defendant. The only question presented is whether the evidence was sufficient to warrant a jury in finding that the defendant was guilty of gross negligence.

The jury could find that the accident that caused the injuries to the plaintiff occurred in the following manner: The plaintiff was travelling westerly along Mechanic Street, in Leominster, on a pleasant afternoon in March, 1939, in an automobile operated by the defendant when, as they approached the intersection of Sixth Street, they saw on their right a large oil truck, which was travelling southerly on Sixth Street, stop a little north of the intersection and then continue a few feet over the intersection and again stop with the front of the truck in Mechanic Street. The defendant was proceeding at thirty-five to forty miles an hour when he was about one hundred feet from Sixth Street. He was watching the truck and was told by the plaintiff to be careful or they would be killed. The defendant increased his speed to fifty miles an hour as he reached the intersection, and he looked at the truck and remarked, in referring to the driver of it, "Why in Hell don't you make up your mind?" He continued to look back over his shoulder at the truck after he passed it and as the automobile was going to the south, across the street, where it went up over the southerly sidewalk, upon which there were three pedestrians. It struck one of them, and, after knocking off a large piece of a retaining wall, came to a stop with its front resting upon the grass embankment which sloped upwards from the top of the retaining wall. The operator of a passenger bus, which was proceeding easterly along Mechanic Street, saw the defendant's automobile approaching and drove the bus to the southerly side of the street and stopped a short distance westerly of Sixth Street. The defendant's automobile slewed across the street and was about eight feet away as it passed across the front of the bus.

The jury could find that the defendant, instead of diminishing

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his speed and giving the right of way to the oil truck which had already entered the intersection from his right when he was about one hundred feet away, increased his speed, notwithstanding the warning of the plaintiff, to such an excessive rate that he caused both the operator of the oil truck and the operator of the passenger bus to stop for their own safety; and that, after succeeding in his attempt to pass ahead of the truck, he looked back at it while he turned his automobile sharply to the left, thus losing control of the automobile, which continued a short distance and then landed against the retaining wall and the embankment. It could be found that he thoughtlessly created a situation fraught with danger and voluntarily incurred an obvious risk to life and limb, and that then, while pursuing his perilous course, he heedlessly diverted his attention from the operation of the automobile. We think it could have been found that the defendant was indifferent to the duty that he owed to the plaintiff as his guest, and that his conduct manifested that degree of culpability essential to gross negligence. Altman v. Aronson, 231 Mass. 588. Meeney v. Doyle, 276 Mass. 218. Crowley v. Fisher, 284 Mass. 205. Colby v. Clough, 301 Mass. 52. O'Neill v. McDonald, 301 Mass. 256. White v. Lewis, 305 Mass. 450.

It follows that the exceptions are sustained and judgment is to be entered on the verdict returned by the jury.

So ordered.