Emeneau v. Hillery

Decision Date02 March 1933
Citation282 Mass. 280
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

December 9, 1932.

Present: RUGG, C.


Negligence, Motor vehicle. Motor Vehicle, Registration.

At the trial of an action of tort for personal injuries against the driver of a motor truck, it appeared that the plaintiff was standing on the truck after, at the direction of his employer, he had assisted in unloading it at a dump to which it had been driven at the direction of its owner, who had business relations with the plaintiff's employer; that for the unloading the truck was backed from the street to the dump that in leaving the dump it was necessary for the truck to be driven about five feet and then to drop about eight inches to the surface of the street; and that the plaintiff knew that such drop had to be made.

There was evidence that, after the unloading and while the plaintiff stood on the truck facing the rear with his arm around a post and his hand gripping it, "the driver started off without any warning" and "came out straight from the dump in fast speed"; that as "he came out, he came down until he got down on the edge of the bank of the dump, then he gave a sharp turn," the wheel on the rear end dropped, the truck "careened and tipped" and the plaintiff "lost" his "hold" and "grip" on the post, fell to the road and suffered personal injuries. A verdict was ordered for the defendant. On exceptions saved by the plaintiff, it was held, that

(1) The jury would not have been warranted in finding what the speed of the truck was as it traversed the distance of five feet between the front of the truck and the edge of the drop at the street, nor whether a "sharp turn" was proper or even necessary in the conditions when the wheel "dropped" and the truck "careened and tipped";

(2) In the circumstances, there was no duty on the driver to warn the plaintiff that the truck was about to start or would be expected to tip when it was turned to cross the drop to the street;

(3) A finding was not warranted that the defendant was negligent either in not warning the plaintiff that the truck was to be started at once or that a depression in the way was to be traversed with a probable tipping and severe jolting of the truck.

At the trial of actions against the owner and the operator of a motor truck for injuries sustained by the plaintiff while riding thereon the plaintiff proved that when the truck was registered in 1931 a wrong engine number was stated in the application therefor. It appeared that the defendant owner did not at any time make a personal examination of the application for registration which was signed by him or of the truck to determine whether the information contained therein or thereon was correct, but left those details to his insurance broker, and that he did not know that the truck was improperly registered at the time of the accident. The application also gave as the capacity of the truck, the

"load to be carried . . . 10000 pounds," whereas in fact the load to be carried was four thousand pounds. The plaintiff relied, to sustain the action, solely upon the above proof to show that the truck was not legally registered and therefore was a nuisance making the defendants liable although the plaintiff's injury was not the result of negligence for which the defendants were responsible. A verdict was ordered for the defendants. Held, that

(1) By reason of the provisions of St. 1928, c. 187, Section 1, the mistake in the registration as to engine number did not make the registration illegal or the truck a nuisance on the highway;

(2) "Carrying capacity" not being a requisite of an application subsequent to the enactment of St. 1928, c. 316, Section 3, the misstatement as to that subject in the application did not make the registration illegal;

(3) The verdict rightly was ordered.

TWO ACTIONS OF TORT. Writs dated, respectively, September 9, 1931, and December 29, 1931.

In the Superior Court, the actions were tried together before Morton, J. Material evidence is stated in the opinion. The judge ordered a verdict for the defendant in each action. The plaintiff alleged an exception in each action.

J. E. Chisholm, (J.

T. Cummiskey with him,) for the plaintiff.

J. H. Gilbride, for the defendants.

PIERCE, J. These are two actions of tort to recover for personal injuries sustained by the plaintiff on a public highway in Cambridge, Massachusetts. One action is against the driver, and the other against the owner, of a truck. The plaintiff's declaration contained two counts in each case, the first based on the negligence of the driver, the second upon the alleged illegal registration of the truck involved. The answer in each case contained a general denial and an allegation of contributory negligence; the answer in the action against the owner alleged in addition thereto a denial of agency. At the close of the evidence the judge on motions of the defendants directed a verdict for the defendant in each action. The cases are before this court on the plaintiff's exceptions duly saved to the aforesaid directions.

The facts in their aspect most favorable to the plaintiff in substance disclose that the accident to the plaintiff occurred on March 14 1931; that at that time the plaintiff was a common laborer employed by the Dewey and Almy Chemical Company; that the defendant Margaret H. Hillery was in the trucking business and as such had business connections with the said chemical company; that she was the owner of the truck involved in each of the actions; and that ...

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