323 Mass. 606 | Mass. | 1949
These actions are for personal injury sustained by the plaintiff at Taunton on July 15, 1942, when a collision occurred between an automobile driven by him and an automobile driven by the defendant Leonard but owned by the defendant Del Solio. There was a verdict for the plaintiff in each action.
There was evidence that the automobile driven by the plaintiff belonged to him but was registered in the name of his father. The answer in each case set up contributory negligence of the plaintiff but did not set up illegal registration as a defence. The only exception argued by the defendants is to a portion of the charge wherein the judge told the jury in substance that, if they found illegal registration, they could take that into account as bearing upon contributory negligence, and that they should consider “whether or not the violation of the statute was an effective and contributing cause of the accident, or merely an attendant circumstance.” It is evident that the judge charged with the pleadings in mind.
There was no error in instructing the jury that they could take into account illegal registration as bearing upon contributory negligence. Where a defendant relies upon illegal registration of the plaintiff’s motor vehicle as a separate defence in itself, he must plead it, but even if he does not plead it as a defence in itself, if he has pleaded contributory negligence, he is entitled to have the jury consider illegal registration as evidence of the plaintiff’s contributory negligence. MacDonald v. Boston Elevated Railway, 262 Mass. 475. MacInnis v. Morrissey, 298 Mass. 505, 509. Herman v. Sladofsky, 301 Mass. 534, 538. VanDresser v. Firlings, 305 Mass. 51, 56. Burns v. Winchell, 305 Mass. 276, 277-278. Conningford v. Cote, 308 Mass. 472, 475-476. Munson v. Bay State Dredging & Contracting Co. 314 Mass. 485. The fact of illegal registration, if proved, is not necessarily conclusive of negligence. That fact may be explained or controlled by other evidence, so that on the whole no negligence appears. The distinction between violation of law
We are inclined also to the view that there was no error in instructing the jury that they should consider whether illegal registration was a cause of the accident or merely an attendant circumstance. The distinction between violation of law as a cause and violation of law as an attendant or collateral circumstance must be sharply drawn wheré violation of law by a plaintiff is open as a complete defence to the action, if it was a cause. This situation is dealt with fully in Newcomb v. Boston Protective Department, 146 Mass. 596, and in the many cases following that case. But where, as in the present cases, violation of law is not pleaded as in itself a defence and is to be considered only as evidence of contributory negligence along with other evidence bearing upon the subject, there would seem to be little need for the singling out of one possible element of negligence for a specific instruction of the kind here given. Nevertheless, as was said, with citation of cases, in Baggs v. Hirschfield, 293 Mass. 1, at page 3, "Negligence consisting in whole or in part of violation of law, like other negligence, is without legal consequence unless it is a contributing cause of the injury.” It does not seem, therefore, that there was error in directing the jury’s attention to the distinction between cause and circumstance.
The defendants urge with considerable force that under the decisions in this Commonwealth the violation of law involved in driving an improperly registered automobile is as matter of law a proximate contributing cause of any collision and of the resulting damage, and that no jury can be permitted to find that it is only a circumstance. It is true that from the early days of the motor vehicle on the
In each case the entry will be
Exceptions overruled.