Opinion
November 3, 1960.
John J. O'Connell, for the plaintiffs.
Francis H. George, for the defendants.
Exceptions overruled. Mrs. Shepard was injured when the defendant's automobile in which she was riding ran into the rear end of another automobile demolishing its trunk and gasoline tank and perhaps splitting its chassis. Her husband seeks consequential damages. Verdicts for the defendant under leave reserved were entered after the jury returned verdicts for the plaintiffs. We assume without deciding that Mrs. Shepard was not engaged in a common employment with the defendant but was his guest who could recover from him if she proved his gross negligence. See Motta v. Mello, 338 Mass. 170, 172. It could have been found that the defendant had been drinking, seemed "in a fog," and failed to heed warnings to stop just before the collision. The accident, however, occurred on a private driveway only a short distance from the point where Mrs. Shepard had entered the automobile and a brief time after the automobile had started to move. Mrs. Shepard estimated that the defendant's speed had become "a little higher than thirty-five miles per hour at the time of impact." The aggregate of any negligent acts on the defendant's part could not be found to involve such an "aggravated degree of culpability" (see Bagley v. Burkholder, 337 Mass. 246, 248) or to have been so long continued, serious, deliberate, and persistent as to constitute gross negligence. See Lynch v. Springfield Safe Deposit Trust Co. 294 Mass. 170, 171-172; Bruno v. Donahue, 305 Mass. 30, 32-36; Lalumiere v. Miele, 337 Mass. 339, 340-341. Cf. Niland v. Cox, 336 Mass. 169, 170-171; Pistorio v. Williams Buick, Inc., ante, 155, 157-158.