This is an action to recover for personal injuries, received by the plaintiff while riding in an automobile driven by the defendant. All the material evidence respecting the conduct of the defendant in the operation of the automobile is contained in the testimony of the plaintiff and of her daughter Josephine, who was fifteen years of age.
The plaintiff testified, in substance, that the defendant was her brother, and that on the night of the accident he called at her house on Margaret Street, in Springfield, to take her to his home in Agawam for a visit; that she and her three children went with him; that it was a dark night and was raining; that after they left her house it rained harder; that they travelled along Columbus Avenue in Springfield and when they arrived at the intersection of that avenue with Court Street, and at a point opposite the fire station, the automobile collided with a Ford truck and she was injured; that as the automobile proceeded to Columbus Avenue, she said to the defendant, “You better turn back; I am afraid to come”; that he replied, “O, that is nothing; we will get to my house very quick”; that the automobile was going very fast as the defendant was in a hurry to get home; that there was no cleaner on the wind shield, and she could not see.through it; that before the collision the defendant wiped the shield on the outside and inside with his handkerchief
At the conclusion of the evidence offered by the plaintiff, the defendant rested and filed a motion that a verdict be directed in his favor for the following reasons: (1) ' 'Upon the law; the pleadings and the evidence the plaintiff cannot recover”; and (2) "The plaintiff has offered no evidence of the defendant’s gross negligence.” To the allowance of this motion the plaintiff excepted.
As the plaintiff at the time of the accident was riding in the automobile as a guest of the defendant, in order to recover she was obliged to prove gross negligence of the defendant in the operation of the automobile. It is plain that upon the evidence most favorable to the plaintiff a finding of gross negligence would not have been justified. The description of the speed as "very fast” falls far short of showing a rate of speed that was dangerous or so excessive as to warrant a finding that the conduct of the defendant was grossly negligent. The facts that it was dark and raining hard and that the wind shield was not equipped with a cleaner did not tend to prove gross negligence and manifest violation of the legal duty required to establish such negligence, as that term has been defined by decisions of this court. Massaletti v. Fitzroy, 228 Mass. 487. Altman v. Aronson, 231 Mass. 588, 591. Burke v. Cook, 246 Mass. 518. Shriear v. Feigelson, 248 Mass. 432. Marcienowski v. Sanders, 252 Mass. 65, 68. The case is distinguishable from Heady v. O’Riley, 257 Mass. 413, Manning v. Simpson, 261 Mass. 494.
The exception to the admission of the written statement signed by the plaintiff and her daughter Josephine cannot be sustained. It contained a recital of what occurred at the time of the accident, and included the statement that the
Exceptions overruled.