281 Mass. 6 | Mass. | 1932
Upon the plaintiff’s request, with the assent of the defendant and after two disagreements by the jury, this case comes before this court upon the allowance of a report thereof by the Superior Court. The action was one of tort, brought by the plaintiff as administrator of the estate of Vahey Ahmedjian who, on January 17, 1929, was almost instantly killed as the result of a collision of an automobile, operated by the defendant, with a sled upon which the plaintiff’s intestate was coasting with two other boys.
The intestate was three years and four months old. Immediately prior to the accident he was sliding on a sled down Elm Street in the town of Northbridge. “Elm Street at the time of the accident was a privately owned street, which had been open to public use for some fifty years.” As the sled came from Elm Street, going slowly and turning to the left around the corner into Fletcher Street, it was struck by the automobile operated by the defendant, which was passing along Fletcher Street, and the boys were thrown in the direction of the center of Elm Street. Fletcher Street is a public way in the said town of Northbridge. The “point of contact or collision between the automobile and sled in question was within the two side lines of Fletcher Street.” “It is admitted that there was evidence
At the time of the accident there was a by-law in the town of Northbridge which was worded as follows: "Sec. 6. No person shall coast or slide in or along any of the sidewalks or streets or ways of the town upon any hand-sled, board, jumper, or otherwise, except at such places and under such restrictions and regulations as the Selectmen may from time to time designate in writing.” At the close of the evidence the plaintiff admitted that the said by-law was legally adopted; that thereafter it was published according to the statutory requirements at the time; that it was duly approved by the then Attorney General of the Commonwealth; and that no change had been made in it prior to the time of the accident.
It is established law in this Commonwealth that a person coasting upon a public way in violation of law is barred thereby from recovering damages for injuries received in the course of such use through the negligence of another person or persons, the reason for the rule being that the immediate and efficient cause of the accident and injury was the illegal use of such way. Boyd v. Ellison, 248 Mass. 250, 254. Query v. Howe, 273 Mass. 92. Richards v. Pass, 277 Mass. 372. In the instant case the plaintiff contends that the law of the above cases is not applicable, for the reason that the by-law above quoted was invalid or that the defendant had failed to sustain the burden of showing a violation of this law by the plaintiff’s intestate. G. L. (Ter. Ed.) c. 231, § 85, provides: "In all actions ... to
By St. 1924, c. 296, a new section was added, now appearing in G. L. (Ter. Ed.) c. 85, as follows: “Section 10A. Selectmen in towns . . . may by regulation designate certain ways or parts of ways, other than state highways, upon which and the hours during which coasting may be permitted and may in like manner regulate the use of such ways by vehicles" during such hours.” Because no evidence was offered at the trial to show whether Fletcher Street was or was not a “state highway,” the plaintiff contends that the absence of proof by the defendant that Fletcher Street was not a “state highway” leaves the facts in the same condition as they would be had it appeared affirmatively that Fletcher Street was a “state highway.” Assuming the correctness of the position taken by the plain
This brings us to the question whether a town or city may forbid coasting by sled dr otherwise upon all public ways within its boundaries. The language of the several statutes from the earliest times is consistent with the existence of such authority. As an illustration, St. 1901, c. 192, authorizes a “city or town ... by ordinance or by-law” to prohibit certain forms of riding or propelling vehicles “upon any of the streets or ways therein, at a rate of speed which it deems inconsistent with public safety.” R. L. c. 52, § 6, provides for regulating the “passage of carriages,” “the use of sleds for coasting . . . upon or through any way or bridge.” See also to the same effect, Pub., Sts. c. 53, § 15. St. 1893, c. 476, provided for the laying out of State highways. No provision is contained therein as to limitations upon the rights of cities and towns to pass ordinances and by-laws regulating the use of the same when passing through the limits of a town. It is to be noted that by § 14 police jurisdiction over all State highways is given to cities and towns. See now G. L. (Ter. Ed.) c. 81, § 19. See also in this connection Commonwealth v. Theberge, 231 Mass. 386, 390, wherein it is said “the Commonwealth, which has power to regulate the use of the State highways, can delegate the administration of such powers to cities and towns which contribute toward their repair and maintenance.”
The by-law in question, therefore, operated to preclude the use of Fletcher Street, whether it was or was not a State highway, unless, as the plaintiff contends, the by-law was invalid in that certain ways or parts of ways were not set apart for coasting, upon which, within certain hours, there
The plaintiff further contends that the by-law of 1906 was invalid because it contains the words “board, jumper, or otherwise.” We think it obvious that the words “board, jumper, or otherwise” are distinctly separable from the word “sled,” and without them leave the by-law as one which stands as a complete by-law capable of being enforced. Goldstein v. Conner, 212 Mass. 57, 59. Commonwealth v. Slocum, 230 Mass. 180, 191.
We have considered all the contentions of the plaintiff and each of his several exceptions, and find nothing of substance in the contentions or of error in the rulings and refusals to rule of the trial judge. It results that judgment should be entered on the verdict, and it is
So ordered.