| Mass. | Feb 11, 1913
The fact that the plaintiff was operating his machine over the highway and that he had no license under the statute then in force (St. 1903, c. 473, §§ 4, 5, as amended by St. 1905, c. 311), was not necessarily fatal to his right to recover. It was merely evidence of his negligence in the management of
But if his machine was not registered or to be regarded as registered as required by other sections of the statute, then his conduct in running it upon the highway and against the rope, the stretching of which across the street constituted the defect complained of, was the act of a mere trespasser, who could have against any one no other right than to be exempt from reckless, wanton or wilful injury. Dudley v. Northampton Street Railway, 202 Mass. 443" court="Mass." date_filed="1909-06-21" href="https://app.midpage.ai/document/dudley-v-northampton-street-railway-co-6430727?utm_source=webapp" opinion_id="6430727">202 Mass. 443. Feeley v. Melrose, 205 Mass. 329" court="Mass." date_filed="1910-02-25" href="https://app.midpage.ai/document/feeley-v-city-of-melrose-6431006?utm_source=webapp" opinion_id="6431006">205 Mass. 329. Chase v. New York Central & Hudson River Railroad, 208 Mass. 137" court="Mass." date_filed="1911-03-01" href="https://app.midpage.ai/document/chase-v-new-york-central--hudson-river-railroad-6431320?utm_source=webapp" opinion_id="6431320">208 Mass. 137, 156 et seq. Bourne v. Whitman, 209 Mass. 155" court="Mass." date_filed="1911-05-19" href="https://app.midpage.ai/document/bourne-v-whitman-6431467?utm_source=webapp" opinion_id="6431467">209 Mass. 155, 172. Love v. Worcester Consolidated Street Railway, 213 Mass. 137" court="Mass." date_filed="1912-11-26" href="https://app.midpage.ai/document/love-v-worcester-consolidated-street-railway-co-6431973?utm_source=webapp" opinion_id="6431973">213 Mass. 137.
The plaintiff was the general owner of this machine, and it was not registered. But he contended that it was at this time controlled by his employer, one Proctor, and that it carried the distinguishing numbers which had been assigned to Proctor, under the provisions of St. 1907, c. 580, § 2, then in force, and that his machine was therefore in the words of that act, to be “regarded as registered.” The evidence as to this was meagre. It was not shown by direct evidence that Proctor had applied to the highway commission for any distinguishing numbers or marks, or that the commission had taken any action upon such an application. This however seems to have been assumed by the plaintiff, and it could be found that the defendant had acquiesced in such assumption. Uncertain and equivocal as much of the plaintiff’s testimony was, we cannot see that it did more than to raise a suspicion, perhaps a strong suspicion, that he had retained control of his machine, and that any use made of it for Proctor’s benefit was merely by the plaintiff’s permission and not as a matter of rightful control by Proctor. Undoubtedly the facts that the plaintiff was the owner of the machine and had had it registered in his own name, which registration had expired, and that he still retained to a considerable degree the custody, if not the possession of it, taking it to his own home at night, furnished evidence in support of the defendant’s contention. Feeley v. Melrose, 205 Mass. 329. But the plaintiff testified also, that this was a shop car, that it was used as a shop machine, that Proctor’s
Exceptions sustained.