Bellenger v. Monahan

• Decision Date: 01 April 1933
• Citation: 282 Mass. 523
• Parties: RODNEY BELLENGER v. GEORGE H. MONAHAN. SAME v. THOMAS F. NALLY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

282 Mass. 523

RODNEY BELLENGER v. GEORGE H. MONAHAN. SAME v. THOMAS F. NALLY.

Supreme Judicial Court of Massachusetts, Suffolk.

April 1, 1933

February 7, 1933.

Present: RUGG, C.

J., CROSBY, WAIT DONAHUE, & LUMMUS, JJ.

Negligence, Motor vehicle, Contributory, In use of way. Wilful, Wanton or Reckless Misconduct. Motor Vehicle, Registration. Evidence Of intent.

At the trial of an action of tort for personal injuries, there was evidence that the plaintiff stopped his automobile at night on the extreme right hand side of a public bridge sixty feet wide between curbs, under a large electric light and just over the crest of the bridge; that there was a three per cent grade on each side of the bridge; that the lights of the automobile were lit; that while the plaintiff was in the rear of his automobile, facing it and stooping to examine the tire carrier, he was struck by a truck driven by the defendant, which had approached from his rear; and that the defendant was very drunk. The defendant admitted that he might have stopped the truck; that he did not see the plaintiff's automobile until he was eighteen feet from it, and did not see the plaintiff until he was ten or twelve feet from him; and that he turned toward the plaintiff to avoid an automobile coming in the opposite direction. Held, that

(1) There was evidence warranting a finding that the defendant was negligent;

(2) It could not properly have been ruled that the plaintiff was negligent because he stopped his automobile on the bridge;

(3) There was evidence warranting a finding that the defendant was guilty of wilful, wanton or reckless misconduct.

At the trial of the action above described, the defendant contended that the plaintiff's automobile registered under the laws of the State of New

York, was unlawfully upon the highway, and that there was a causal connection between the illegal act and the plaintiff's injuries. The accident happened on October 3, 1927. The plaintiff testified that at different times for a number of years and in 1927 up to June 28, he had worked for a corporation in Watertown in this Commonwealth, and had lived in that vicinity until June 30; that he then left the Commonwealth and went to New York, not intending to return that his automobile, previously unregistered and kept in a barn in New York, was registered there in July, 1927, and was so registered at the time of the accident; that he drove it into this Commonwealth on September 6, not intending to remain, but intending to return to New York; that he then stayed with a friend in Boston during the twenty-eight days before the accident, his wife being with her brother and sister in Needham; that, not being able after the accident to do the only work which he could secure in New

York, he went to work for his former employer in Watertown on January 1, 1928. Held, that

(1) There was evidence from which it could be found that when the plaintiff went to New York on June 30, 1927, he gave up his residence in this Commonwealth and became a resident of New York;

(2) It could not rightly have been ruled as a matter of law that the plaintiff's automobile at the time of the accident was unlawfully upon the highway in violation of G.L.c. 90, Section 3, as amended by St.

1923, c. 431, Section 1; or of G.L.c. 90, Section 1, as amended by St. 1923, c. 464, Section 1, and by St. 1924, c. 189.

At the trial of the action above described, it was proper to admit evidence of the intention of the plaintiff to remain in New York after leaving this Commonwealth in June, 1927.

TWO ACTIONS OF TORT. Writs dated October 24, 1927. In the Superior Court, the actions were tried together before Macleod, J. Material evidence is stated in the opinion. The judge denied motions by the defendants that verdicts be ordered in their favor.

There was a verdict for the plaintiff in each action in the sum of $8,000. The defendants alleged exceptions.

The cases were submitted on briefs.

W. B. Keenan & J.

A. Treanor, Jr., for the defendants.

D. H. Fulton, for the plaintiff.

CROSBY, J. These are actions of tort brought to recover for personal injuries sustained by the plaintiff on October 3, 1927, on North Beacon Street, in Watertown, in this Commonwealth, by reason of being struck by an automobile truck owned by the defendant Nally and operated by the defendant Monahan. In the same actions the plaintiff seeks to recover for damage to his automobile. The declarations as amended are substantially the same, each declaration containing counts for negligence and for wilful, wanton or reckless misconduct of the driver of the truck. The answer of the defendant Monahan was a general denial, contributory negligence, that at the time of the accident the plaintiff's automobile was not registered in accordance with the laws of this Commonwealth and was a trespasser on the highway and for that reason the plaintiff cannot recover. The answer of the defendant Nally was the same as that filed by the defendant Monahan, except that he further answered "that at the time and place alleged in the plaintiff's declaration, the defendant's automobile was not being operated by one who was acting as agent for the defendant within the scope of his employment." This last defence is now waived by the defendant Nally. The actions were tried to a jury. At the close of the evidence each defendant filed a motion for a directed verdict. These motions were denied. There was a verdict for the plaintiff in each case. The jury answered "No" to the following special questions: (1) "As to whether the car was illegally registered"; (2) "As to whether if it was so illegally registered, it contributed to cause the accident." The cases are before this court on the defendants' exceptions to the refusal of the trial judge to grant the defendants' motions for directed verdicts, to his refusal to give certain rulings requested, to certain rulings made upon the evidence, and to the charge. The pleadings are made a part of the bill of exceptions which contains all the material evidence.

Upon the evidence considered most favorable to the plaintiff, and the reasonable inferences to be drawn therefrom, the judge correctly ruled that the evidence warranted findings of negligence and of wilful, wanton and reckless conduct of the driver of the truck. The plaintiff testified that at the time of the accident he was coming from Boston and going in a westerly direction toward Watertown to visit a friend; that about 7 P.M. as he was driving over the North Beacon Street bridge he heard a noise in the rear of his automobile, and as the rear tire carrier had been repaired that day he thought it might not be all right and stopped to see if there was any trouble with it; that he stopped on the west side of the bridge about one hundred feet from the end under a large electric light; that it had been dark for a short time; that he went to the rear of his automobile and looked at the tire carrier and stood there a minute when he was struck; that at the time his automobile, with the lights on and the emergency brake set, was parked close to the right hand curbstone, facing west, at a point just over the crest of the bridge where there was a slight down grade; that the grade was about three per cent on each side of the bridge; that when he was struck he was standing behind his automobile facing it; that he did not know what struck him at the time. The roadway on the bridge was sixty feet wide between the curbs.

The defendant Monahan testified that when he struck the plaintiff's automobile he was going around eighteen or twenty miles an hour; that the plaintiff's automobile was parked right against the curb, and the plaintiff was near the back of the left wheel stooped over, looking at the tire rack or something; that he was about ten or twelve feet from the plaintiff's automobile when he first saw the plaintiff leaning over; that "the reason why he did not see the man before then was that he was watching some one going the other way and there was a car coming down toward him that came away over on his side of the road." He had previously testified that about six o'clock that night he went into a "speakeasy" and had three drinks of whiskey. He further testified that in the Waltham court where he was charged with operating an automobile upon a public way while under the influence of liquor he pleaded guilty.

Charles A. Cotter a police officer, testified that at the time of the accident he was about two hundred feet from the place where it occurred; that he found the plaintiff lying with his hand and shoulders on the curbing of the sidewalk within three or four feet of an arc light; that he was bleeding from his head, and there was blood on his side, and he was unconscious. This witness further testified that Monahan staggered, that there was a strong odor of liquor from his breath, his eyes were "glassy" and he was very drunk; that he asked Monahan how the accident occurred and Monahan replied, "I don't know. I was asleep"; that from the place where the plaintiff was lying in the street down to the plaintiff's car, a distance of about fifty feet, there were skid marks on the road, and there was a dent in the left rear of the plaintiff's automobile; that the witness arrested Monahan at the place where the accident occurred and got him into the...