292 Mass. 562 | Mass. | 1935
This is an action of tort brought in the District Court to recover compensation for damage to the plaintiff’s vehicle resulting from its being struck on the highway by an electric car of the defendant which was being operated negligently. The declaration describes the vehicle as a “trailer truck” and as a “trailer.” The answer contains a general denial and an allegation of contributory negligence of the plaintiff. The defendant made these requests for rulings: “1. On all the evidence, the plaintiff is not entitled to recover. 2. The plaintiff, having suffered an unregistered trailer to be drawn over a public highway, said vehicle was an outlaw on said highway at the time of the accident.” The trial judge refused to rule as requested and found for the plaintiff. A report to the Appellate Division was dismissed and the defendant appealed to this court.
The report contains these statements: A “vehicle owned by the plaintiff and sometimes described as a ' trailer ’ . . . was attached to a motor truck which came into collision with an electric car owned by the defendant company on
The report also recites that there “was evidence offered to show that the operator of the motor truck drove the machine with trailer attached over and across the tracks of the defendant company located on a public highway . . . upon which tracks an electric car was approaching,” and that there “was evidence from which it could be found that solely as a result of the negligence of the operator of said street car the latter struck said trailer, causing the damage" complained of.”
Findings of fact cannot be reviewed on this appeal. The only ruling of law requiring consideration is the refusal of the defendant’s second request for a ruling. Since the defendant’s first request for a ruling was based “on all the evidence” and was not in conformity with Rule 27 of the-District Courts (1932), the action thereon of the trial judge
There was no error of law in the refusal of the trial judge to rule in accordance with the defendant’s second request.
As the report does not show affirmatively that this request was made with reference to the pleadings, the action of the trial judge cannot be reversed if it was right either with or without reference to the pleadings. Allen v. Kilpatrick, 277 Mass. 237, 241. Ferris v. Boston & Maine Railroad, 291 Mass. 529, 533. Whether this principle would go so far as to deprive the defendant of the benefit of a judicial admission in the declaration binding on the plaintiff under G. L. (Ter. Ed.) c. 231, § 87, we need not decide. There was no such admission in the declaration material to this ruling. The reference in the declaration to the plaintiff’s vehicle as a “trailer truck” or “trailer” was not an admission that it was a “trailer” within the statutory prohibition of a person’s drawing an unregistered trailer on the highway or of the owner’s permitting such a trailer to be operated on the highway or to remain thereon. G. L. c. 90, § 1, as amended (see St. 1923, c. 464, § 1). G. L. c. 90, § 9, as amended (see St. 1928, c. 381, § 3).
The owner of a motor vehicle or “trailer” as defined by statute (G. L. c. 90, § 1, as amended), which is not registered as required by law and is not within any exception to the requirement of registration, who permits it to be operated or to remain on the highway, cannot recover compensation for damage caused to it while on the highway by the negligence of another person. G. L. c. 90, § 9, as amended. Di Cecca v. Bucci, 278 Mass. 15. The ruling requested bore on the application of this principle of law to the facts of, this case.
The requested ruling necessarily implied a finding by the trial judge that the plaintiff’s vehicle was a “trailer” within the meaning of G. L. c. 90, § 1, as amended, which, for the purposes of the statute governing the use of trailers on the
There was no express finding by the trial judge that the plaintiff’s vehicle was such a “trailer.” And the facts set out in the report bearing on the nature of the plaintiff’s vehicle, though treated as established in favor of the defendant because found, agreed upon, or shown by evidence binding on the plaintiff, did not require such a finding. The statutory definition of “trailer” was considered in Coleman Bros. Inc. v. Union Street Railway, ante, 557, with reference to a somewhat similar state of facts, and it was pointed out that the Timitation of the definition to vehicles used in carrying commodities “in connection with commerce” required some commercial element beyond mere transportation to bring a vehicle used for carrying commodities within such definition. The “general use” of the plaintiff’s vehicle “was to convey large steam shovels to different places for excavating purposes” and it “was to be used for that purpose on this occasion.” Excavation is not commerce. Under the decision in the case cited, such transportation of steam shovels by the owner of the vehicle in connection with, and solely as incident to, such owner’s work of excavation would not be carrying commodities “in connection with commerce” within the meaning of the statutory definition of “trailer.” The present case, in this aspect, is not distinguishable from Coleman Bros. Inc. v. Union Street Railway, unless on the ground that the plaintiff’s vehicle was not being used by its owner in connection with his own work of excavation. But the use of the vehicle by Greany and Sherry who hired it from the plaintiff for use in connection with their work of excavation was not a use by them for “carrying . . . commodities in connection with commerce” merely because the vehicle was hired and not
We need not consider whether the refusal of the defendant’s second request for a ruling can be sustained on any other ground.
Order dismissing report affirmed.