Cook v. Crowell
| Decision Date | 28 November 1930 |
| Citation | 273 Mass. 356,173 N.E. 587 |
| Parties | COOK v. CROWELL. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Barnstable County; Frederick W. Fosdick, Judge.
Action by Walter P. Cook against Mary E. Crowell, executrix. Verdict for plaintiff on defendant's exceptions.
Exceptions sustained. Judgment for defendant.
R. B. Owen and E. R. Anderson, both of Boston, for plaintiff.
W. A. Thibodeau, of Boston, for defendant.
This is an action of tort to recover damages for injuries sustained by the plaintiff, as the result of the alleged negligence of the defendant Crowell's testator. At the close of all the evidence the judge refused to grant a written motion of the defendant to direct a verdict in her favor and also refused to give certain requests made by her for instructions to the jury in form or in substance. The jury returned a verdict for the plaintiff. The case is before this court on the exceptions of the defendant to the refusal of the judge to grant the motion to direct a verdict; and also to his refusal to instruct the jury (1) ‘if the truck which the plaintiff was using in his employment was standing at the time the plaintiff received his injuries and the plaintiff was then in or about said truck, he was operating said truck within the definition of our laws relating to the operation of automobiles'; (2) ‘if the plaintiff was operating an automobile which was then bearing number plates which were not assigned to that automobile when it was registered or on which automobile there were displayed number plates assigned to another automobile, then said automobile was improperly registered, was a trespasser upon the highway and a nuisance, and the plaintiff cannot recover’; and (3) ‘the registration of an automobile under an erroneous engine number, prior to Statutes on 1928, c. 187, is illegal and such automobile is a trespasser on the highway, and if the plaintiff was operating such an automobile he cannot recover in this action.’
The facts shown by the bill of exceptions disclose that the plaintiff, on December 8, 1927, was engaged in peddling fish in the town of Barnstable; that in the course of this employment he went onto the public highways, using, as a vehicle of transportation for himself and goods for sale, a truck which was improperly registered; that at some time during the morning he arrived in the vicinity of a certain customer's house which was on the right hand side of the road going from east to west; that he stopped his truck, parked it on the right hand side of the road off the road as near as he could to the trees; that the highway here was a macadam road twenty-five or thirty feet wide and in addition to the macadam there was a space on the side of the road, with a little grass and gravel, running from the edge of the road to some trees; that very little of the truck was on the macadam, and the part that was not on it was on the right hand side on the grass and gravel; that he got off his truck and went into the customer's house for an order; that after it was given him he went out to get the order from his truck; that he came up to the rear of the truck and stood there, opened the doors and reached in to get some clams; that he had a quart measure in one hand and ‘his bailer to bail the clams out; that he had taken one bail out of the bucket that contained the clams,’ and while so doing was hit from behind by an automobile operated by the testator.
On the record we assume there is no question raised here as to the testator's negligence. Before St. 1928, c. 187, an automobile was a trespasser, an outlaw and a public...
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