266 Mass. 220 | Mass. | 1929
This is an action of tort to recover for the death of the plaintiff’s intestate resulting from a collision on June 30, 1927, between an automobile operated by him and a motor truck owned and operated by the defendant. The macadam surface of the street was sixteen feet in width. The vehicles were approaching each other on a long curve, the truck proceeding uphill in the center of the road and the automobile going' down on the right hand side. The truck was loaded with iron rods fifteen to twenty feet long with ends projecting- diagonally from the front. Evidence was introduced tending to show that the outside width of the truck including the load was more than three feet in excess
A woman on the seat with the driver of the automobile testified that she noticed the truck with the rods extending beyond it approaching in the center of the road, turning the curve fifty feet from her, and she said to the driver "how are you going to get by? ” that he did not have time to turn to the right and get by the rods or to answer when she spoke, but she thought the automobile slowed down just before the accident. She estimated the speed of the automobile to be about twenty miles an hour. It was registered and insured in the name of the deceased.
One Lussier, a witness called by the defendant, testified in substance that he purchased the automobile of the deceased in May, 1927, making a payment on account of the purchase price on May 6, 1927, and that it was delivered to him at the time of the first payment. He agreed to make a payment every two weeks thereafter, and made one on June 20, 1927. At the time of the accident, $12.50 remained due on the purchase price. He repaired the automobile, • renewed certain parts, and continued to use it after its purchase without changing the registration plates. On the day of the accident the deceased asked Lussier to allow him to take the automobile for a trip to Wellesley, and Lussier consented to his use of it during the day if the deceased would take him to Boston, and they went that far together. When the sale took place there was talk about registration and insurance; but no suggestion that until the automobile was paid for the deceased was to reserve title or the right to use it. In rebuttal the plaintiff, mother of the deceased, testified that some time in June, 1927, her son told her that he had sold the automobile to Lussier but he, the son, was to have the use of it until it was paid for in full; that he was not going "to turn over the insurance and registration or number plates or anything until the car was fully paid for, that it was still to remain in his name.” She also testified that after the accident she asked Lussier to pay for the automobile and he said he did not have the money but asked her to have the
The intention of the parties respecting the passing of title must be ascertained from the terms of the agreement as expressed in the language and conduct of the parties and as applied to known usages and the subject matter. Foster v. Ropes, 111 Mass. 10, 16. Stoddard v. Ham, 129 Mass. 383, 385. Wigton v. Bowley, 130 Mass. 252, 254.
The jury were not bound to believe the testimony of Lussier; and it was for them to say whether the statement of the deceased to his mother meant that one of the terms of the contract was that the automobile was to remain in the son’s name until full payment was made, and whether the parties understood that title was not to pass until that time. An agreement that property shall remain in the name of the seller is not essentially different in its legal effect from an agreement that title should not pass from him. The judge was right in submitting the case on this issue to the jury. He ruled, in substance, that the plaintiff could not prevail if her son was driving an automobile which was without legal registration, and that the defendant to maintain this defence of violation of statute must satisfy the jury that the sale was absolute and unconditional. See Doherty v. Ayer, 197 Mass. 241; Conroy v. Mather, 217 Mass. 91. If the deceased held the legal title a registration in his name was authorized. Temple v. Middlesex & Boston Street Railway, 241 Mass. 124.
We do not know how far away the deceased was when he first saw the truck, within what space the automobile could have been stopped, or whether he saw the protruding rods; nor do we know whether the automobile could have passed in safety in the space between the ends of the projecting rods and the side of the road. Conflicting evidence as to the rate of speed of each vehicle was introduced and it was for the jury to say whether the speed of the automobile was greater than was reasonable and proper under all the circumstances and, if so, whether such violation of law was a contributory cause of the accident. The plaintiff had a right to rely to
The exception to the refusal of the judge to rule that the evidence would not justify a finding that the defendant was negligent has not been argued and is treated as waived. The record discloses no reversible error in the matters to which the exceptions argued relate.
Exceptions overruled.
