304 Mass. 237 | Mass. | 1939
The plaintiff seeks to recover against his employer for personal injuries sustained when the truck, owned by the employer and in which the plaintiff was riding, collided with the rear of a truck that had stopped upon the highway. The case was referred to an auditor whose findings were not to be final. It was heard in the Superior Court upon the report, and the judge, having found the facts as set forth in the report, denied, subject to exceptions, certain requests of the. plaintiff for rulings, and ordered judgment for the defendant.
The auditor found upon all the evidence and upon findings recited in his report that the accident was caused by the combined negligence of the operator of the other truck, the lack of experience and negligence of Chapolonis, and the faulty conditions of the brakes on the defendant’s truck. He also found that Chapolonis was not an employee of the defendant; that the defendant knew or should have known of the faulty condition of the brakes of his truck; and that the plaintiff, who had been operating this truck for three weeks before the accident, actually knew the defective condition of the brakes. He further found that the plaintiff, by permitting Chapolonis to operate the truck without warning him of the condition of the brakes, was contributorily negligent.
The facts found by the auditor were accepted as true by the judge, and he was entitled to draw from the facts contained in the report all reasonable inferences of which those facts were susceptible in favor of the party for whom he ordered judgment. The drawing of such inferences is a question of fact, and in actions of law the decision of the
The defendant had alleged in the answer that the plaintiff was guilty of contributory negligence; and the findings of the auditor, which we have already summarized, were addressed to this issue. But that answer, while sufficient to permit the introduction of evidence of illegal conduct upon the part of the plaintiff as bearing upon his lack of due care, MacDonald v. Boston Elevated Railway, 262 Mass. 475; MacInnis v. Morrissey, 298 Mass. 505, did not permit the consideration of the evidence in any aspect, irrespective of negligence. Newcomb v. Boston Protective Department, 146 Mass. 596. Baggs v. Hirschfield, 293 Mass. 1. After the filing of the auditor’s report the defendant amended his answer by setting up that the plaintiff was barred from recovery on account of his violation of law. The finding for the defendant imports a specific finding that the plaintiff’s violation of law helped to cause his injury, Adams v. Dick, 226 Mass. 46; Nicoli v. Berglund, 293 Mass. 426, and the question is, whether such a specific finding can be supported by the facts recited in the report. Bianco v. Ashley, 284 Mass. 20. Scott v. Lieberman, 284 Mass. 325.
The findings of the auditor show that the plaintiff requested and permitted Chapolonis, who he knew was not. licensed to operate the truck, and who lacked experience, to operate it. The operation of a truck with brakes that were not in good working order constituted a violation of G. L. (Ter. Ed.) c. 90, § 9, upon the part of Chapolonis and also upon the part of the plaintiff, who, as custodian of the truck, permitted it to be operated upon a public way. The plaintiff would also be chargeable for Chapolonis’s violation of § 9 because, by G. L. (Ter. Ed.) c. 90, § 10, the plaintiff was responsible for any violation of said c. 90 by an unlicensed operator whom he permitted to drive the
The judge was warranted in reaching the conclusion that such violations of the criminal law by the plaintiff were the direct contributory cause of his injury. Such conduct bars recovery. Bourne v. Whitman, 209 Mass. 155. Farr v. Whitney, 260 Mass. 193, 196. Jones v. New York, New Haven & Hartford Railroad, 275 Mass. 139. Patrican v. Garvey, 287 Mass. 62. Follansbee v. Ohse, 293 Mass. 48.
The plaintiff was not entitled to prevail upon the facts found and there was no error of law in the denial of his requests.
Order for judgment affirmed.