Feeley v. City of Melrose

205 Mass. 329 | Mass. | 1910

Sheldon, J.

In our opinion the fifth and sixth requests should have been given in each one of the cases. If the injury to the individual plaintiffs was due in part to the negligence of Brooks in driving the automobile, then it could not be said that the defect in the highway was the sole cause of their injury within the meaning of our decisions. Kidder v. Dunstable, 7 Gray, 104. Shepherd v. Chelsea, 4 Allen, 113. Pratt v. Weymouth, 147 Mass. 245, 252. Block v. Worcester, 186 Mass. 526. This would not be a case where the concurring cause of the injury was the merely innocent act of a third party, as in Hayes v. Hyde Park, 153 Mass. 514, and Clinton v. Revere, 195 Mass. 151. It is not because the negligence of Brooks is to be imputed to these plaintiffs that they fail of recovery, (Shultz v. Old Colony Street Railway, 193 Mass. 309,) but because by reason of that negligence, although they are not responsible for it, it could not be found that the defect in the way was the sole cause of the injury.

But as the case has turned, the defendant has not been harmed by this error. The fifth ruling asked for was given in the case of the Shepard Company, and the finding of the jury in favor of the plaintiff in that ease establishes the fact that Brooks was not negligent. This exception cannot be sustained. And what we have said applies also to the eleventh request.

If the automobile in which the female plaintiffs were riding was not registered according to the requirements of law, it was unlawfully upon the way; those who were using it were not travellers but trespassers; and it would follow that they could not maintain this action. Doherty v. Ayer, 197 Mass. 241, 247. Dudley v. Northampton Street Railway, 202 Mass. 443. Each one of the plaintiffs must fail of recovery in that event. It would not help the individual plaintiffs that they may not have known that the automobile was not duly registered; they did not know that it was, and it was at their own peril, as to the city and as to third persons, that they undertook to use a vehicle the use of which was prohibited by law. It follows that the ninth and tenth requests for instructions should have been given, if there was evidence on which the jury could have found the facts therein stated. And we are of opinion that the jury could so have found.

There was evidence that the number upon this machine was 13,627, and that the only automobile which had been registered under that number was a machine like this which had been registered in the name of one Eames, but which he had ceased to own on March 20,1907. The accident happened on July 5, 1907. The statute in force on March 20 was St. 1903, c. 473, § 1, as amended by St. 1905, c. 311, § 2, and St. 1906, c. 412, § 8. It was further amended before the date of the accident by St. 1907, c. 580, § 1; but this amendment contained nothing which bears upon the question before us and may be disregarded. The statute provided that “ upon the transfer of ownership of any automobile or motor cycle its registration shall expire.” Accordingly it could have been found that the registration of ■ this machine had expired on March 20, and yet that it still bore the number of that former registration. And the plaintiffs, although their attention was thus called to the matter, offered no evidence of any new registration or to show that a new official number had been assigned to the machine. Brooks in rebuttal testified that it was running “ by Mr. Shepard’s number,” but that he could not tell what that number was or what number was on the machine.

Undoubtedly, it was for the defendant to show that the machine was not duly registered and numbered. Doherty v. Ayer, 197 Mass. 241. But we cannot say as matter of law that evidence that it had been duly registered, that this registration had expired about three months before the accident, and that the machine still bore the number of the old registration, did not tend to prove this fact, especially when the plaintiffs, one of whom was the owner of the machine, put in no other evidence upon the question than the testimony of Brooks, which we have referred to. Accordingly, we are of opinion that the ninth and tenth requests should have been given.

The first request was rightly refused. The questions in the case were for the jury. Nor do we find any error in the rulings excepted to other than what has been stated. Woods v. Boston, 121 Mass. 337. Flynn v. Watertown, 173 Mass. 108. Leonard v. Boston, 183 Mass. 68.

Exceptions sustained.