308 Mass. 472 | Mass. | 1941
These are two actions of tort, the first of which is brought by a minor through his father and next friend, to recover compensation for personal injuries sustained as a result of a collision of motor vehicles, alleged to have been caused by negligence of the defendant. In the second action the father of the minor seeks to recover consequential damages. The defendant’s answer contains a general denial, and allegations of “contributory negligence of the plaintiff himself or the negligence of some third person over whom the defendant had no control.” The jury returned a verdict for the plaintiff in both cases, and they now come before us on the defendant’s exceptions to the exclusion of certain evidence, to the denial of his motions for directed verdicts, and to a portion of the judge’s charge in which he interpreted the provisions of G. L. (Ter. Ed.) c. 89, § 8, the so called right of way statute. The minor plaintiff will be referred to hereinafter as the plaintiff.
The only argument addressed to us by the defendant in connection with his exceptions to the denial of his motions for directed verdicts is based on his contention that, since a truck operated by the plaintiff was being operated at the time of the accident more than thirty days after the date of its entry into this Commonwealth contrary to the provisions of G. L. (Ter. Ed.) c. 90, § 3, as amended by St. 1933, c. 188, the vehicle was a trespasser on the highway and therefore the plaintiff cannot recover.
The accident occurred at the intersection of Fall River and Warren avenues in Seekonk, in this Commonwealth, at about 5:30 p.m. on September 23, 1935. The plaintiff was then sixteen years old, a resident of Greenwood, Rhode Island, and was operating a motor truck owned by his
So far as pertinent G. L. (Ter. Ed.) c. 90, § 3, as amended by St. 1933, c. 188, in force at the time of the accident (see now St. 1939, c. 325), limited the privilege of a nonresident to operate his motor vehicle on the ways of this Commonwealth without registration here to a period of not exceeding thirty days commencing from the date of entry, “provided, that no motor vehicle . . . shall be so operated beyond a period of thirty days after . . . the date of entry of the vehicle . . . except during such time as the owner thereof maintains in full force a policy of liability insurance . . . nor unless the owner or operator of such motor vehicle . . . while operating the same during such additional time, has on his person or in the vehicle in some easily accessible place a permit issued by the registrar which then authorizes the operation of such vehicle without registration under this chapter.” (See also § 9.)
In VanDresser v. Firlings, 305 Mass. 51, decided after
We are of opinion, moreover, that it cannot be said that the exclusion of this evidence was not prejudicial error. It is true that the plaintiff had already admitted that the truck operated by him was “not registered in Massachusetts . . . [that] it had no Massachusetts registration plates on it and . . . carried no Massachusetts compulsory insurance.” We think, however, that this evidence standing alone would not require a finding by the jury that the owner of the truck had not complied with the provisions of § 3 by maintaining in full force a policy of liability insurance and had not received a permit for the operation of the vehicle on our highways as provided in that section. The jury could reasonably infer that the compulsory insurance referred to by the plaintiff in the admission above quoted was that required for registration under § 2 as amended, as distinguished from that required for the issuance of a permit under § 3 as amended by St. 1933, c. 188.
Although the defendant did not set up as a defence that the truck operated by the plaintiff at the time of the accident was unlawfully on the highway, its unlawful presence, if proved, would be evidence of contributory negligence, which was set up as a defence, VanDresser v. Firlings, 305 Mass. 51, 56, and cases cited, and, violation of the statute being evidence of negligence, if it had any causal connection with the collision, the plaintiff could not recover. MacDonald v. Boston Elevated Railway, 262 Mass. 475, 477. See Baggs v. Hirschfield, 293 Mass. 1, and cases cited. While proof of such a violation, where not specifically pleaded.
To establish that the truck operated by the plaintiff was being driven at the time of the accident in violation of the provisions of c. 90, the defendant was required to prove that it had neither been insured and registered under § 2 as amended, nor insured and permitted under § 3, as amended by St. 1933, c. 188. That it was not insured and registered under § 2, as amended, was established by the defendant, but to prove violation of the provisions of c. 90 the defendant was also required, and was entitled, to show that no permit had been issued for its operation under § 3 as amended by St. 1933, c. 188. It follows that the defendant’s exception in each case to the exclusion of the evidence offered to show that no permit had in fact been issued under § 3 as amended by St. 1933, c. 188, must be sustained, and it is
So ordered.
