4 Blashfield Cyc. of Auto Law and Practice, 466, § 2336 (Perm. Ed.); Powell v. Berry (1916), 145 Ga. 696, 89 S.E. 753; Bertera v. Cumeo (1935), 273 Mass. 181, 173 N.E. 427; Findlay v. Davis (1933), 263 Mich. 179, 248 N.W. 588. In the case before us, we need only decide that intoxication, accompanied by excessive speed, or weaving from one side of the highway to another, or other similar misconduct, constitutes wanton and willful misconduct.
We think that the effect of the defendant's emotional disturbance is to be ascertained in much the same manner as the effect of the influence of liquor. Something more than befuddlement by drink must be shown in order to establish gross negligence. If the befuddlement, however, is such as to cause substantially complete inattention or thoughtlessness, or a high degree of indifference to the driver's duty, then gross negligence can be found. Learned v. Hawthorne, 269 Mass. 554; McCarron v. Bolduc, 270 Mass. 39; Bertera v. Cuneo, 273 Mass. 181; Caldbeck v. Flint, 281 Mass. 360; Lynch v. Company, 294 Mass. 170. Upon the defendant's own testimony, the jury could find that her fit of anger caused substantially complete thoughtlessness of her duty to the plaintiff. They could fairly conclude, upon all the facts, that the defendant's lack of care was so great as to approach the line of extreme negligence, rather than that of simple inadvertence.
Marcienowski v. Sanders, 252 Mass. 65, 67. Lynch v. Springfield Safe Deposit Trust Co. 294 Mass. 170, 172. See Bertera v. Cuneo, 273 Mass. 181. The fact that there were four persons on the front seat, on this record, is not enough to constitute gross negligence. Carpenter v. Anderson, 301 Mass. 550.
This evidence did not warrant a finding of gross negligence. Bertera v. Cuneo, 273 Mass. 181. Richards v. Donohue, 285 Mass. 19. Curley v. Mahan, 288 Mass. 369, 374. Adamian v. Messerlian, 292 Mass. 275. Folan v. Price, 293 Mass. 76. Lynch v. Springfield Safe Deposit Trust Co. 294 Mass. 170. Woods v. Woods, 295 Mass. 238. Cahalane v. Dennery, 298 Mass. 34. Beaton v. Dawson, 303 Mass. 429.
We think on this evidence it was a matter of conjecture whether any liquor which Gimbel had taken early in the evening was a contributing cause of the accident at 10:40. Marcienowski v. Sanders, 252 Mass. 65, 67. See Bertera v. Cuneo, 273 Mass. 181. With this element out of the case, it seems to a majority of the court that there was not quite enough to support a finding of that high degree of culpability and indifference to duty which is the essential characteristic of gross negligence. Altman v. Aronson, 231 Mass. 588, 591. There is no evidence of deliberate inattention, or of voluntary incurring of obvious risk, or of impatience of reasonable restraint, or of persistence in a palpably negligent course of conduct over an appreciable period of time.
The requests for rulings were too broad. The fact of drunkenness, if proved, was important but not necessarily conclusive evidence of negligence. Whatever may be the probability, it is conceivable that one under the influence of liquor may act the same as one in the exercise of due care. Bertera v. Cuneo, 273 Mass. 181, 183. It could not have been ruled as matter of law that the negligence of the defendant caused the death of the plaintiff's intestate. Whether it did or not was a question of fact.
Burke v. Cook, 246 Mass. 518. Shriear v. Feigelson, 248 Mass. 432. There was no evidence that he was not paying attention to his driving. It does not appear that the operator was asleep or had closed his eyes, as in Blood v. Adams, 269 Mass. 480 (compare Shriear v. Feigelson, supra), or had been drinking intoxicating liquor, as in Learned v. Hawthorne, 269 Mass. 554, and in McCarron v. Bolduc, 270 Mass. 39 (compare Bertera v. Cuneo, 273 Mass. 181), or that his attention was diverted to other matters, as in Rog v. Eltis, supra, and in Kirby v. Keating, 271 Mass. 390. Neither the plaintiff's account of the accident nor that of the defendant showed that the defendant was driving improperly with relation to other traffic, as in Manning v. Simpson, 261 Mass. 494, where the operator drove across the path of an approaching motor vehicle.