Home CATHERINE C. IRONS & another vs. PILGRIM REAL ESTATE, INC.

338 Mass. 790

January 16, 1959

Exceptions overruled. This is an action of tort to recover damages for personal injuries to Catherine C. Irons, hereinafter called the plaintiff, and for consequential damage to her husband. The accident happened in an apartment house in which the plaintiff was a tenant and was caused by the presence of a foreign substance on a stairway in the control of the defendant, which the defendant, as part of the letting, had agreed to keep clean. The accident happened at 1 P.M. on September 13, 1955. Without reciting the evidence concerning the accident it is enough to say that in the opinion of a majority of the court there was sufficient evidence of the negligence of the defendant to warrant the judge in submitting that question to the jury.

Home JOSEPH MARSHALL vs. JOAQUIM AUGUST, JUNIOR.

338 Mass. 790

January 28, 1959

Exceptions overruled. This case comes here upon the plaintiff's exception to the allowance of the defendant's motion for a directed verdict. The plaintiff was riding as a gratuitous guest in an automobile operated by the defendant at the intersection of Huttleston Avenue and Adams Street in Fairhaven on May 25, 1956, at 4:45 P.M. The only issue before us is the gross negligence of the defendant. There was evidence that the defendant drove along Huttleston Avenue at a rate of speed of about forty miles an hour. The plaintiff had asked the defendant to drive more slowly at least twice. The defendant told him to mind his own business. Without diminishing his speed the defendant made a right turn from Huttleston Avenue into Adams Street, skidded across Adams Street, and struck a parked automobile, causing injury to the plaintiff. The roadway of both streets was dry and the weather was clear. There was no error. It has been firmly established that a gratuitous guest passenger may recover only upon proof that the operator of the automobile in which he was riding was guilty of gross negligence. Massaletti v. Fitzroy, 228 Mass. 487 . We are of opinion that the evidence here falls far short of showing gross negligence. Flynn v. Hurley, 332 Mass. 182 . Belina v. Pelczarski, 333 Mass. 730 , 733. McNair v. Fraher, 336 Mass. 458 . Lalumiere v. Miele, 337 Mass. 339 . See Pruzynski v. Malinowski, ante, 58. "There was here no evidence which would warrant a finding of gross negligence, which must be based on conduct . . . amounting to an `aggravated degree of culpability.'" Bagley v. Burkholder, 337 Mass. 246 , 248. O'Neill v. McDonald, 301 Mass. 256 , and Carvalho v. Oliveria, 305 Mass. 304 , 305-306, upon which the plaintiff relies, are distinguishable on the facts from the case at bar.

Home RALPH MARCHESI vs. ALFRED BRABANT.

338 Mass. 790

January 28, 1959

Exceptions overruled. In this action of summary process which was tried before a judge of the Superior Court, the judge made findings of fact and found for the plaintiff. The defendant presented three requests which in effect asked the judge to rule that a finding for the defendant was required. These requests

Page 791

were denied. Exceptions to their denial and to the finding for the plaintiff bring the case here. The sole question is whether a memorandum executed by the parties in the latter part of December, 1955, constituted a lease. The parties agree that if it is a lease the defendant should prevail, and that if it is not, the plaintiff should prevail. The judge ruled that the memorandum was not a lease and at most was an agreement to execute a lease at some future time. There was no error. The memorandum contained no date for the commencement or termination of the occupancy, and, as the judge found, there was "no evidence from which either of those dates can reasonably and precisely be found." "The duration of a lease for years must be certain; this includes both its commencement and termination." Murray v. Cherrington, 99 Mass. 229 , 230. See Farris v. Hershfield, 325 Mass. 176 .