
    Nellie T. Sullivan vs. Phillip G. Cushing.
    Suffolk.
    December 8, 1937.
    December 10, 1937.
    Present: Rugg, C.J., Field, Lummus, Qua, & Cox, JJ.
    
      Statute, Repeal. Law of the Road. Actionable Tort.
    
    St. 1936, c. 49, abolishing without a saving clause the civil liability created by G. L. (Ter. Ed.) c. 89, § 5, for violation of §§ 1-4, barred an action under § 5 pending but untried at the time of its enactment. Following Pittsley v. David, 298 Mass. 552.
    Tort. Writ in the Superior Court dated September 1, 1934.
    The action was heard without a jury by Walsh, J., in January, 1937. He ruled that the plaintiff could not recover. The plaintiff alleged exceptions.
    The case was submitted on briefs.
    
      M. Palais, for the plaintiff.
    
      K. C. Parker, for the defendant.
   By the Court.

This is an action of tort whereby the plaintiff seeks to recover compensation for personal injuries received in July, 1934, in an accident in this Commonwealth, while she was a guest in the defendant’s automobile. The case was referred to an auditor whose finding was that the conduct of the defendant did not constitute gross negligence or wilful, wanton, reckless disregard for the safety of the plaintiff. He found that the injury of the plaintiff was sustained by reason of violation by the defendant of G. L. (Ter. Ed.) c. 89, § 4. The only issue of law involved is whether St. 1936, c. 49, amending G. L. (Ter. Ed.) c. 89, § 5, by striking out the provision for civil liability for violation of the preceding sections of said c. 89, took away from the plaintiff her right to recover compensation for injuries received by her through violation by the defendant of § 4 of said c. 89. The trial judge rightly ruled that the plaintiff could not recover. The case is governed by Pittsley v. David, 298 Mass. 552.

Exceptions overruled.  