Feeley v. City of Melrose

• Decision Date: 25 February 1910
• Citation: 91 N.E. 306,205 Mass. 329
• Parties: FEELEY v. CITY OF MELROSE. STEVENS v. SAME. WALTER L. SHEPARD CO. v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

205 Mass. 329

91 N.E. 306

FEELEY

v.CITY OF MELROSE.

STEVENS

v.SAME.

WALTER L. SHEPARD CO.

v.SAME.

Supreme Judicial Court of Massachusetts, Middlesex.

Feb. 25, 1910.

Exceptions from Superior Court, Middlesex County; Loranus E. Hitchcock, Judge.

Actions by Ellen Feeley, by Margaret E. Stevens, and by the Walter L. Shepard Company against the City of Melrose. Judgments for plaintiffs, and defendant excepts. Exceptions sustained.

These are actions of tort, two being for personal injuries sustained by reason of an automobile, in which plaintiffs Stevens and Feeley were passengers, running into an open trench, and the third for damages to the automobile in which they were riding, and which was owned by the third plaintiff.

The requests referred to in the opinion are as follows:

‘(1) Upon all the evidence the plaintiffs are not entitled to recover.’

‘(5) If the jury find that the driver, Brooks, was not in the exercise of due care, the plaintiffs are not entitled to recover.

‘(6) If the jury find that the plaintiffs Stevens and Feeley trusted to Brooks the sole care and operation of the automobile in which they were riding, and relied wholly upon the care and vigilance of Brooks, and he was negligent, the said plaintiffs are not entitled to recover.’

‘(9) If the jury find that the automobile in which the plaintiffs were riding was not registered according to the requirements of law, the plaintiffs are not entitled to recover.

‘(10) If the jury find that the ownership of the automobile registered under the number which was upon the automobile in suit had changed prior to July 5, 1907, and the number had not been reissued, the plaintiffs cannot recover.’Wm. J. Corcoran and M. F. Cunningham, for plaintiffs.

Claude L. Allen, for defendant.

SHELDON, J.

In our opinion the fifth and sixth requests should have been given in each one of the cases. If the injury to the female plaintiffs was due in part to the negligence of Brooks in driving the automobile, then it could not be said that the defect in the highway was the sole cause of their injury within the meaning of our decisions. Kidder v. Dunstable, 7 Gray, 104;Shepherd v. Chelsea, 4 Allen, 113;Pratt v. Weymouth, 147 Mass. 245, 252, 17 N. E. 538,9 Am. St. Rep. 691;Block v. Worcester, 186 Mass. 526, 72 N. E. 77. This would not be a case where the concurring cause of the injury was the merely innocent act of a third party, as in Hayes v. Hyde Park, 153 Mass. 514, 27 N. E. 522,12 L. R. A. 249, and Clinton v. Revere, 195 Mass. 151, 80 N. E. 813. It is not because the negligence of Brooks is to be imputed to these plaintiffs that they fail of recovery (Shultz v. Old Colony St. Ry., 193 Mass. 309, 79 N. E. 873,8 L. R. A. [N. S.] 597, 118 Am. St. Rep. 502), but because by reason of that negligence, although they are not responsible for it, it could not be found that the defect in the way was the sole cause of the injury.

But as the case has turned, the defendant has not been harmed by this error. The fifth ruling asked for was given in the case of the Shepard Company, and the finding of the jury in favor of the plaintiff in that case establishes the fact that Brooks was not negligent. This exception cannot be sustained. And what we have said applies also to the eleventh request.

If the automobile in which the female plaintiffs were riding was not registered according to the requirements of law, it was unlawfully upon the way; those who were using it were not travelers, but trespassers; and it would follow that they could not maintain this action. Doherty v. Ayer, 197 Mass. 241, 247, 83 N. E. 677,14 L. R. A. (N. S.) 816, 125 Am. St. Rep. 355;Dudley v. Northampton St. Ry., 202 Mass. 443, 89 N. E. 25. Each one of the plaintiffs must fail of recovery in that event. It would not help the female plaintiffs that they may not have known that the automobile was not duly registered; they did not know that it was, and it was at their own peril, as to the city and as to third persons, that they undertook to use a vehicle the use of which was prohibited by law. It follows that the ninth and tenth requests for instructions should have been given, if there was evidence on which the jury could have found the facts therein stated. And we are of opinion that the jury could so have found. There was evidence that the number upon this machine was 13,627,...