Goldmann, Freund and Conford. Goldmann, S.j.a.d.
This is an action for damages by Mr. and Mrs. King who were passengers in an automobile driven by defendant Jones which ran into the rear of an automobile driven by defendant Stott. The jury returned a verdict of no cause of action in favor of both defendants, and plaintiffs appeal from the resultant judgment.
The facts are simply stated. On Saturday evening, October 24, 1953, Jones and his wife invited plaintiffs to attend a dance at the Three Towers Inn, South Somerville. They drove there in Jones' car, arriving between 10 and 11 P.M. When it came time to leave at about 1 A.M. Jones found he had misplaced the keys to his car. He arranged for the use of an automobile belonging to one Westbrook, and told plaintiffs to get into the car. Jones drove, Mrs. King sat beside him, and Mr. King and Westbrook sat in the rear seat. (Mrs. Jones seems to have disappeared somewhere in the course of these events; the greatly abbreviated record makes no further mention of her.) The road was a two-lane highway and it was rainy.
Jones testified he was driving between 25 and 30 miles an hour when he suddenly noticed defendant Stott's car stopped directly ahead of him in the driving lane and without lights. He says he applied his brakes but skidded into the back of the car. The impact was described as "medium"; the damage was minimal. A state trooper arrived soon after. Jones told him he had not noticed the car in front and, in answer to an inquiry as to whether he had been drinking prior to the accident, said that he had had three beers.
(Jones denied this; his version was that he said he had had only one bottle of beer.) The trooper testified there was no question in his mind that Jones was not intoxicated, and accordingly there was no need for an examination. However, he issued a summons for following too closely, a charge to which Jones subsequently pleaded guilty in municipal court.
Mrs. King testified that Jones was travelling at between 35 and 40 miles an hour when she suddenly saw the Stott car some 25 feet in front and moving very slowly. Jones did not slow down; she did not notice what effort he made to avoid the accident -- "it all happened so quickly." Her head hit the windshield and her chest the dashboard. She also suffered injuries to her left knee and right hand.
Mr. King testified he did not see the accident. He had been talking to Westbrook in the back seat, and the only thing he knew was when the cars hit. Stott's testimony was that he was driving along at from 35 to 40 miles an hour when he saw some one walking on the side of the road and slowed down slightly. He saw bright lights coming up behind him at "a great rate of speed" and then the collision occurred.
At the close of all the evidence plaintiffs moved to strike the defense of contributory negligence raised by both defendants, and requested the court to rule that they were Jones' invitees. Both motions were denied. In his charge the trial judge left the issues of contributory negligence and plaintiffs' status as invitees for jury determination. Plaintiffs' attorney promptly entered formal objection to the charge of contributory negligence.
The principal ground of appeal is that the trial judge erred in refusing to strike the affirmative defense and permitting the issue of contributory negligence to go to the jury. We agree that the judgment must be reversed on this ground and the cause remanded for a new trial.
In resisting plaintiffs' motion to strike the defense of contributory negligence, defense counsel made the argument -- and this was addressed only to Mrs. King's claim -- that
she should have put her hand on the dashboard or taken some other measure to avoid injury. This argument was absurd on its face and is not even mentioned on the present appeal. Any attempt to protect herself in the split second she had to think might or might not have minimized Mrs. King's injuries, but this has little bearing on the ...