Brown v. Alter

• Citation: 146 N.E. 691,251 Mass. 223
• Parties: BROWN v. ALTER.
• Decision Date: 27 February 1925
• Court: United States State Supreme Judicial Court of Massachusetts

251 Mass. 223

146 N.E. 691

BROWN

v.ALTER.

Supreme Judicial Court of Massachusetts, Norfolk.

Feb. 27, 1925.

Report from Superior Court, Norfolk County; Patrick M. Keating, Judge.

Action of tort by Austin G. Brown against Frederick A. Alter for damages to automobile from collision at street intersection. On report from superior court. Judgment for defendant.

1. Municipal corporations k705(4)-Unregistered automobile nuisance on highway.

In action for damages from automobile collision, automobile unregistered, as required by statute, must be assumed nuisance on highway.

2. Municipal corporations k705(10)-Contributory negligence of automobile driver precludes recovery, though other car was unregistered.

Before automobile driver can recover damages from collision with another car which, because unregistered, constituted a nuisance on highway, he must show his own freedom from negligence directly contributing to that damage.

John A. Canavan and Samuel P. Sears, both of Boston, for plaintiff.

Coughlan Bors., of Abington, for defendant.

RUGG, C. J.

This is an action of tort to recover damages sustained by the plaintiff through the collision at intersecting streets of an automobile owned and driven by him with another automobile owned and driven by the defendant. The automobile of the defendant was not registered and he had no license as an operator. The jury were instructed that the defendant at the time of the collision was an outlaw and trespasser on the highway, and that his automobile was a nuisance, and that they need not consider whether the plaintiff was guilty of gross negligence or of willful misconduct. In answer to a special question, the jury found that want of due care on the part of the plaintiff contributed directly to his damage. Thereupon a verdict was directed for the defendant. The correctness of this ruling is reported for our determination.

[1][2] The automobile of the defendant must be assumed to have been a nuisance on the highway, since it was not registered in conformity to our statutes. Dudley v. Northampton Street Railway, 202 Mass. 443, 89 N. E. 25, 23, L. R. A. (N. S.) 561;Dean v. Boston Elevated Railway, 217 Mass. 495, 105 N. E. 616;Gondek v. Cudahy Packing Co., 233 Mass. 105, 110, 123 N. E. 398;Washburn v. Union Freight Railway, 247 Mass. 414.142 N. E. 79. That fact has important effects upon the rights of the defendant to recover for injuries done him by others. The plaintiff as a traveler on the highway cannot recover of the defendant for damage caused by a nuisance maintained on the highway without showing that his own want of care did not directly contribute to that damage. This is the rule of our own cases. The question was clearly decided in Smith v. Smith, 2 Pick. 621,13 Am. Dec. 464. It has been followed in Parker v. Adams, 12 Metc. 415,46 Am. Dec. 694, and Sherman v. Fall River Iron Works, 2 Allen, 524, 526, 79 Am. Dec. 799. Doubtless it has been accepted without question as a settled principle in the trial of many causes. Practical experience has established it as a custom regulating conduct. It seems to us to be supported by the great weight of authority. Parker v. Union Woolen Co., 42 Conn. 399, 402; Baltimore v. Marriott, 9 Md. 160, 176,66 Am. Dec. 326;Irwin v. Sprigg, 6 Gill (Md.) 200, 205, 46 Am. Dec. 667; Crommelin v. Coxe, 30 Ala. 318, 329, 68 Am. Dec. 120; Butterfield v. Forrester, 11 East, 60; Congreve v....