STEPHEN W. BELINA vs. STANLEY PELCZARSKI (and a companion case [Note p730-1]).

SPALDING, J. In these two actions of tort the jury returned

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verdicts for the plaintiffs, which were recorded under leave reserved. Thereafter the judge entered verdicts for the defendant. The cases come here on a consolidated bill of exceptions of the plaintiffs and the defendant. The plaintiffs excepted to the entry of verdicts for the defendant under leave reserved. The defendant excepted to the denial of his motions for directed verdicts presented at the close of the evidence and to the refusal of one of his requests for instructions.

The evidence most favorable to the plaintiffs was as follows: The plaintiffs and the defendant had made arrangements to go hunting and ice fishing on a lake in Orange. About eight o'clock in the morning of January 22, 1949, the defendant called for the plaintiffs in Chicopee Falls. Another group joined the expedition at Indian Orchard. It had snowed the day before and the condition of the roadways was "icy, slushy, and slippery." On arriving at Indian Orchard, the plaintiff Belina learned that the defendant had chains and requested him to put them on, but the defendant said that he did not think it was necessary. The two groups then left Indian Orchard for their destination. The defendant operated his automobile with Belina sitting beside him in the front seat and with the plaintiff Jarek sitting alone in the back seat. "The day was bright and clear and, as it progressed, grew colder."

Upon leaving Indian Orchard the defendant took the so called Ludlow Road, which is the main road between Ludlow and Belchertown. Normally this road was eighteen feet wide but by reason of snow and snow banks its width was reduced to approximately sixteen feet. The road "had a crown and was slippery and dangerous."

Approximately two miles before reaching the scene of the accident the defendant's automobile skidded. Again Belina "asked the defendant about using chains, and the defendant replied that he still didn't think that there was any need for them." Belina then requested the defendant to reduce the speed and the defendant did so.

As they approached the place where the accident occurred

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the road went downhill. It was not an abrupt but rather a "gradual slant" and the road curved to the right. The view at the foot of the hill was obstructed. At this point the road was "slippery and dangerous and the defendant was operating his automobile down the center of the cleared portion of the roadway." The defendant did this because "it was too slippery to the right." As the defendant started down the hill his speed, according to Belina, was thirty to forty miles an hour and increased to fifty to sixty. [Note p732-1] Belina asked the defendant to "take it easy" but the defendant made no reply. The defendant then observed a ten ton truck coming from the opposite direction at a speed of approximately fifteen to twenty miles per hour. The truck was travelling on its own side of the road, but the defendant was still operating his automobile along the center of the roadway. Upon seeing the truck, the defendant applied his brakes. As he did so, his automobile was about to enter the curve. When the brakes were applied, the automobile started to skid and continued to skid "in a straight line" until it collided with the truck which had "pulled to its own right, off the highway." After his automobile started to skid and shortly before the collision, the defendant "took his hands off the steering wheel and lifted them shoulder high to ward off the impact." The left side of the defendant's automobile collided with the left front of the truck. The accident occurred on the curved portion of the road. The speed of the truck at the time of the collision was approximately five miles per hour. According to Belina, the speed of the defendant's automobile was fifty to sixty miles per hour when it started to skid, and at the point of impact, after skidding twenty-five feet, its speed was the same. As a result of the collision the plaintiffs were injured, the defendant's automobile was completely wrecked, and considerable damage was done to the truck.

Inasmuch as the plaintiffs were guests of the defendant, they could recover only on proof of gross negligence. We

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are of opinion that the evidence would not warrant a finding of gross negligence. The line between gross negligence and ordinary negligence is often difficult to draw. "It is seldom that any one factor or any one precedent will be wholly decisive. The matter is likely to remain largely one of opinion in each case. Yet the distinction is well established and must be observed, lest all negligence be gradually absorbed into the classification of gross negligence." Quinlivan v. Taylor, 298 Mass. 138, 140.

True, the defendant did not see fit to put on his chains, although cautioned to do so. But on this record there is no basis for inferring that the automobile was more likely to skid without chains than with them. The speed, especially in view of the icy conditions, might well have been found to have been greater than was reasonable and proper (G. L. [Ter. Ed.] c. 90, Section 17) and a finding of negligence would doubtless have been warranted. But we cannot say that the defendant's conduct amounted to "that aggravated degree of culpability necessary to make out proof of gross negligence." Lamb v. Russell, 294 Mass. 203, 205. With respect to the absence of chains, road conditions, and speed the cases at bar resemble Adamian v. Messerlian, 292 Mass. 275.

Relying on such cases as Bruce v. Johnson, 277 Mass. 273, and Dinardi v. Herook, 328 Mass. 572, the plaintiffs argue that the defendant could have been found to be grossly negligent by reason of having taken his hands off the steering wheel. But those cases are not controlling. In both there was more than momentary inattention. In the cases at bar the raising of hands by the defendant occurred just before the collision and was hardly more than a reflex action to ward off the impending impact. This aspect of the cases at bar falls, we think, within the first group of cases discussed in the Dinardi case at page 574.

In view of our conclusion it becomes unnecessary to discuss the defendant's exceptions and they are dismissed.

Plaintiffs' exceptions overruled.

Defendant's exceptions dismissed.