329 Mass. 464

October 29, 1952 - November 25, 1952

Bristol County


Evidence that an operator of an automobile drove for a considerable time at night while in a condition of drowsiness, replying in the affirmative to inquiries of a guest riding with him whether he was all right, until finally "there was a crash" causing injury to the guest, and that after the accident the operator said that he "guess[ed]" he "fell asleep at the wheel," warranted a finding of gross negligence on the part of the operator and did not require a ruling that the guest was guilty of contributory negligence.

TORT. Writ in the Superior Court dated November 3, 1948.

The action was tried before Nagle, J.

In this court the case was submitted on briefs.

William A. Torphy, for the plaintiff.

Charles R. Desmarais, for the defendant.

SPALDING, J. This action of tort is brought to recover for personal injuries sustained by the plaintiff while riding as a guest in an automobile owned and operated by the defendant. After a verdict for the plaintiff the trial judge, subject to the plaintiff's exception, entered a verdict for the defendant under leave reserved. The only question is whether the evidence warranted a finding of gross negligence.

The plaintiff testified in substance as follows: On August 4, 1948, she rode with the defendant in his automobile from Brockton to Boston, where they spent the evening with a friend. As they were leaving for home around 1 A.M. the plaintiff noticed that the defendant "looked a bit drowsy," and asked him if he felt all right. "She suggested that perhaps he was a little bit tired and inquired whether he would rather that . . . [she] drove the car." The defendant replied

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that "he didn't feel drowsy and . . . felt all right." The defendant seemed to the plaintiff to be nodding but he insisted on driving. When they were outside of Boston "her conversation suddenly went unanswered," and she noticed that the defendant's "eyes appeared to be heavy and his head was drooping." They proceeded for about half an hour when the plaintiff noticed that the defendant was nodding again and she asked him if he was all right, and he replied that he was. About that time he pulled over to the side of the road, got out of the automobile, and excused himself. "In a couple of minutes" he returned and the plaintiff again inquired whether he was all right and whether he wanted her to drive, and he replied that "he was perfectly capable of handling the wheel." The place where this stop was made was in a deserted area on a back road to Brockton, with which the plaintiff was unfamiliar. While continuing toward Brockton, the plaintiff "leaned back for a few minutes." It "was very dark out and there wasn't anything to watch." The speed of the automobile was thirty-five to forty-five miles per hour. "The next thing that she knew there was a crash. She thought that the steering gear had gone through her." She sustained injuries and was taken to a hospital. About two or three days after the accident the plaintiff met the defendant and the testimony as to their conversation is as follows: "Q. Did you have any talk with him concerning the happening of the accident? A. Yes, I did. Q. What was the talk? A. About two or three days [after] the accident he had a collision of some kind and landed in the hospital. I had to go in for a checkup . . . every other day. On one of the visits I was in the hospital and he was upstairs and I went up to see him. Q. Will you tell us what he said to you and what you said to him. A. I asked him what had happened. He said, `Well, I don't know. I guess I fell asleep at the wheel.'"

We are of opinion that a finding of gross negligence was warranted. It could have been found that a condition of drowsiness had overtaken the defendant which persisted for

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such length of time that he ran the risk of an accident in continuing to drive. In view of the defendant's admission, the jury could also have concluded that the accident resulted from the fact that the defendant fell asleep at the wheel. In Belletete v. Morin, 322 Mass. 214, on facts quite similar to those here, it was held that the defendant could have been found to be grossly negligent. That case is controlling here. There we said, quoting from Carvalho v. Oliveria, 305 Mass. 304, 305-306, "Without undertaking to lay down a rule that falling asleep is always evidence of gross negligence, at least it may be said that the danger of driving while heavy with drowsiness is so extreme and so self-evident that one who, with knowledge that he is in that condition, persists in driving without making the necessary effort fully to arouse himself can be found to be grossly negligent" (page 217). Other cases to the same effect are Blood v. Adams, 269 Mass. 480, and Moore v. Patrone, 298 Mass. 198.

The suggestion put forward by the defendant that his admission in the hospital might have had reference to the subsequent accident rather than to the one in which the plaintiff was injured does not impress us. The jury could have inferred that it related to the latter. That was the one in issue, and what happened in the second accident would have had no relevancy. That there could have been any misapprehension as to which accident was meant is quite unlikely. However, if there was any ambiguity in the admission it could have been clarified on cross-examination -- a course not pursued by the defendant.

The question of the plaintiff's due care was one of fact and was rightly submitted to the jury. Bessey v. Salemme, 302 Mass. 188, 210. McGaffigan v. Kennedy, 302 Mass. 12, 17. Belletete v. Morin, 322 Mass. 214, 217.

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

So ordered.