260 Mass. 193 | Mass. | 1927
These three actions of tort were tried together. They resulted from a collision of the defendant’s
In the action of Farr v. Whitney there was evidence that the defendant, in passing Farr’s vehicle, “turned in too sharply to the right so that a nut or wedge” on the right rear wheel of the defendant’s automobile came in contact with the left front hub cap of the plaintiff’s machine. The plaintiff at the time was operating by his agent, on the public way, a motor vehicle for the carriage of passengers for hire. He conducted this business between fixed termini, furnishing “a means of transportation similar to that afforded by a railroad company” from the railroad station in Ayer to a point on Main Street in Groton, near the town hall. He had no license from the selectmen of Groton to run this vehicle; he had what purported to be a license from the selectmen of Ayer, which the defendant contended was invalid. It also appeared that there was no mirror or reflector attached to the plaintiff’s motor vehicle.
There was evidence for the jury of the defendant’s negligence. The defendant contends that as the automobile belonging to Farr was not licensed according to law to carry passengers for hire, it was a trespasser on the highway; that for this reason Farr cannot recover. As Farr had no license from the selectmen of Groton to carry passengers for hire, he could be restrained from continuing the business. G. L. c. 159, §§ 45, 46. New York, New Haven & Hartford Railroad v. Deister, 253 Mass. 178. But the fact that he did not have a license from the proper authorities to carry passengers did not make his vehicle a trespasser on the public highway within the rule laid down in Dudley v. Northampton Street Railway, 202 Mass. 443. An unregistered automobile cannot lawfully be operated upon the public highways. It is an outlaw, with no other protection than exemption from wilful or wanton injury; G. L. c. 90, § 9; and it must be registered in compliance with the requirements of the statute. Staley v.
What has been said applies to the absence of a mirror or reflector upon the plaintiff’s automobile. G. L. c. 90, §§ 7, 9. An automobile must be registered, and the conditions requisite for a legal registration must be complied with. Staley v. Wilbur, supra. But if properly registered it has rights upon the highway, although some provision of law relating to its equipment may not have been observed. The rule in Dudley v. Northampton Street Railway, supra, is not to be extended to the present case. It might have been found if the plaintiff’s automobile were equipped with a reflector, that the plaintiff’s agent could have seen the defendant as he approached in time to avoid the collision; but it could not be ruled as a question of law that this was so, or that the failure to comply with the statute was a contributing cause to the
The second count in Farr v. Whitney alleged that in consequence of the defendant’s reckless, wanton and wilful conduct, the collision occurred. A witness for the plaintiff testified that as the defendant was passing Farr’s automobile, he jammed the wheels hard to the right, at the same time using an insulting remark and profane language. It also appeared that he was licensed to carry piassengers in Ayer. In our opinion, the conduct of the defendant was not enough to show reckless, wanton and wilful conduct. It did not prove that he was actuated by a wanton and wilful disregard of the plaintiff’s rights. It may have indicated his temper and present feeling toward the driver of the other vehicle, and a desire to place responsibility for the collision upon him; but it was not enough, even though he was a rival of the plaintiff in the business of carrying passengers, to prove the allegations of the second count. Wanton and wilful misconduct differs in kind from either simple or gross negligence. Altman v. Aronson, 231 Mass. 588, 592.
The defendant moved in writing for a directed verdict on the second count. This motion was denied. The verdict for the plaintiff was a general one. The defendant’s motion for a directed verdict on this second count should have been granted. As the verdict was a general one, it cannot be determined on which count it was returned. This exception, therefore, must be sustained. Lynch v. Allyn, 160 Mass. 248. Fairman v. Boston & Albany Railroad, 169 Mass. 170. Hogar v. Norton, 188 Mass. 47, 51.
In the cases of Kathleen E. Watson and George C. Watson, the considerations already discussed are applicable. Their cases were for the consideration of the jury under the first and second counts of their declarations, alleging negligence. Mrs. Watson testified she did not remember seeing a reflector on the vehicle in which she was riding, “she did not remember seeing any mirror.” Under G. L. c. 90, § 9, the neglect of an owner of an automobile to comply with § 7 of the statute is not a defence against the passenger who is not the owner or operator of the automobile, unless the passenger knew or had
Exceptions sustained.
