Opinion
January 28, 1959.
The case was submitted on briefs.
Fred M. Thomas George M. Thomas, for the plaintiff.
Gerald P. Walsh, for the defendant.
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.