Falvey v. Hamelburg

• Decision Date: 04 May 1964
• Citation: 347 Mass. 430,198 N.E.2d 400
• Parties: Richard F. FALVEY v. Joseph HAMELBURG.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 400

198 N.E.2d 400

347 Mass. 430

Richard F. FALVEY v. Joseph HAMELBURG.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 7, 1964.

Decided May 4, 1964.

Thomas B. Shea, Boston, for plaintiff.

Gael Mahony, Boston, for defendant.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER and REARDON, Jj.

SPALDING, Justice.

This is an action of tort for personal injuris suffered by Richard F. Falvey, a minor, by reason of the alleged negligence of the defendant. The case was referred to an auditor who found for the defendant. Thereafter the case was tried to a jury on the auditor's report and other evidence, and the jury returned a verdict for the plaintiff, which was recorded under leave reserved. On motion of the defendant the judge entered a verdict for the defendant, subject to the plaintiff's exception, and the correctness of this action is the sole question presented.

The evidence may be summarized as follows. At the time of the accident, August 5, 1957, the plaintiff was six years of age. The accident occurred on Massachusetts Avenue, Boston, between Albany Street and the corner of Columbia Road which is known as Edward Everett Square. Massachusetts Avenue is fifty feet wide from curb to curb and runs north and south. The accident happened at some time between 5:35 and 6:15 P.M. It was daylight, the weather was clear, and the surface of the street was dry. According to the plaintiff's witnesses the accident occurred at a point opposite No. 1277 Massachusetts Avenue, which is on the west side of the avenue. Edward Everett Square is about one hundred feet to the south of No. 1277. Traffic at the square is controlled by traffic lights. The time of the accident was described as a 'rush hour' and the traffic was 'heavy'; there were 'long lines of traffic.'

Just prior to the accident the plaintiff had been playing with one of his brothers and some other boys in a yard opposite No. 1277 on the east side of the avenue. While so engaged, two older brothers of the plaintiff (Daniel and Robert) drove up in a truck and parked near the curb on the west side of the street in front of No. 1277. Robert attracted the attention of his brothers and 'motioned to them * * * to come across the street.' At the time Robert gave the signal there were two lines of standing traffic on the west side of Massachusetts Avenue, but there was no northbound traffic on the east side of the avenue. At the place opposite No. 1277 there was a 'space between the two cars [which] was three-fourths of a length to a car's length.' Upon receiving the signal from his brother, the plaintiff proceeded to cross the street. He passed beyond the center line which was twenty-five feet from the curb and then went between two cars in the first line of traffic and upon reaching a point about five feet beyond these cars, according to the testimony of one of the brothers, the plaintiff was struck by the 'middle front of the defendant's car' and was thrown forward about ten feet.

There was evidence from other witnesses that the plaintiff ran into the side of the left front fender. The defendant testified that he had stopped his car because the traffic light at Columbia Road was red and when it changed to green he started his car. After he had traveled about ten feet he 'heard a thud on the side of the car.' At that time his car was traveling about ten miles an hour. The defendant had driven on Massachusetts Avenue many times prior to the accident and knew that it was a 'thickly settled neighborhood' in which there were 'numbers of children.' The defendant admitted that the automobile involved in the accident was owned by him but that it was registered in his father's name.

The defendant's automobile, since it was not registered in the name of the owner, was illegally registered, and was being operated at the time of the accident in violation of law. G.L. c. 90, §§ 2, 9. Capano v. Melchionno, 297 Mass. 1, 10, 7 N.E.2d 593. The defendant does not contend otherwise. Since the accident occurred before St.1959, c. 259, amending G.L. c. 90, § 9, which abolished the trespasser doctrine laid down in Dudley v. Northampton St. Ry. Co., 202 Mass. 443, 89 N.E. 25, 23 L.R.A., N.S., 561, the prior law must apply. Ostertag v. Cahalin, 343 Mass. 523, 179 N.E.2d 894.

The plaintiff argues that the fact that the defendant was driving an illegally registered car taken together with the evidence showing the manner of its operation at the time of the accident was sufficient to take the case to the jury on the issue of negligence. The plaintiff's declaration was based not on illegal registration but on negligence. In these circumstances, as the plaintiff concedes, illegal registration can be treated only as evidence of negligence. Puro v. Keikkinen, 316 Mass. 262, 266, 55 N.E.2d 762. Dean v. Leonard, 323 Mass. 606, 83 N.E.2d 443.

We shall discuss first whether apart from the question of illegal registration there was sufficient evidence of negligence to take the case to the jury. We are of opinion that there was not. The speed (five to ten miles an hour) was not excessive. There was evidence that the defendant's car traveled no more than ten feet before the plaintiff was struck. There was no evidence that the defendant could have seen the plaintiff for more than an instant, if at all, before the impact. That the plaintiff was thrown ten feet when struck is in the circumstances not sufficient to establish negligence.

Although the case appears to have been tried below on the theory that the defendant's car was in the right hand lane at all relevant times, the plaintiff in this court suggests a different theory. The defendant put in evidence the deposition of one John W. Martin, a taxi driver, who was an eyewitness to the accident. He testified that the defendant's car was directly in front of his at the time of the accident and that both cars were in the lane nearer the center of the street. The plaintiff argues that the jury could accept portions of Martin's testimony for the purpose of finding that the defendant was in the left-hand line of traffic at first and reject other portions so as to find that the defendant changed to another line of traffic before the accident. We are of opinion that to fragmentize Martin's testimony in this way would distort it. See Berardi v. Menicks, 340 Mass. 396, 400, 164 N.E.2d 544, 83 A.L.R.2d 1. Moreover, we fail to see how a change in lanes on the part of the defendant, if there was one, would make the plaintiff's case any stronger on the issue of negligence.

It remains to consider whether the defendant's violation of law involved in his operation of an illegally registered car was sufficient to take the case to the jury. The doctrine that violation of law is negligence per se does not prevail in this Commonwealth. Wynn v. Sullivan, 294 Mass. 562, 566, 3 N.E.2d 236. Richmond v. Warren Inst. for Sav., 307 Mass. 483, 485, 30 N.E.2d 407, 132 A.L.R. 859. Dean v. Leonard, 323 Mass. 606, 608, 83 N.E.2d 443. In a long line of cases it has been said that the violation of a penal statute is evidence of negligence as to all...