Murray v. Indursky

• Decision Date: 12 February 1929
• Citation: 266 Mass. 220,165 N.E. 91
• Parties: MURRAY v. INDURSKY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

266 Mass. 220

165 N.E. 91

MURRAY

v.INDURSKY.

Supreme Judicial Court of Massachusetts, Middlesex.

Feb. 12, 1929.

Exceptions from Superior Court, Middlesex County; M. Morton, Judge.

Action by Vera J. Murray, administratrix of the estate of Francis G. Murray, deceased, against Abraham Indursky. Judgment for plaintiff, and defendant brings exceptions. Exceptions overruled.

J. H. Gilbride, of Lowell, for plaintiff.

F. N. Wier and M. J. Cohen, both of Lowell, for defendant.

SANDERSON, J.

This is an action of tort to recover for the death of the plaintiff's intestate resulting from a collision on June 30, 192m, between an automobile operated by him and a motor truck owned and operated by the defendant. The macadam surface of the street was 16 feet in width. The vehicles were approaching each other on a long curve, the truck proceeding up hill in the center of the road and the automobile going down on the right-hand side. The truck was loaded with iron rods 15 to 20 feet long, with ends projecting diagonally from the front. Evidence was introduced tending to show that the outside width of the truck, including the load, was more than 3 feet in excess of 96 inches, the width permitted by G. L. c. 90, § 19. The projecting rods caught the top of the automobile, crashed through the windshield, and caused the fatal injury.

A woman on the seat with the driver of the automobile testified that she noticed the truck with the rods extending beyond it approaching in the center of the road, turning the curve 50 feet from her, and she said to the driver, ‘How are you going to get by?’ that he did not have time to turn to the right and get by the rods or to answer when she spoke, but she thought the automobile slowed down just before the accident. She estimated the speed of the automobile to be about 20 miles an hour. It was registered and insured in the name of the deceased.

One Lussier, a witness called by the defendant, testified in substance that he purchased the automobile of the deceased in May, 1927, making a payment on account of the purchase price on May 6, 1927, and that it was delivered to him at the time of the first payment. He agreed to make a payment every two weeks thereafter, and made one on June 20, 1927. At the time of the accident, $12.50 remained due on the purchase price. He repaired the automobile, renewed certain parts, and continued to use it after its purchase without changing the registration plates. On the day of the accident, the deceased asked Lussier to allow him to take the automobile for a trip to Wellesley, and Lussier consented to his use of it during the day, if the deceased would take him to Boston, and they went that far together. When the sale took place there was talk about registration and insurance, but no suggestion that, until the automobile was paid for, the deceased was to reserve title or the right to use it. In rebuttal the plaintiff, mother of the deceased, testified that some time in June, 1927 her son told her that he had sold the automobile to Lussier, but he, the son, was to have the use of it until it was paid for in full; that he was not going ‘to turn over the insurance and registration or number plates, or anything, until the car was fully paid for, that it was still to remain in his name.’ She also testified that after the accident she asked Lussier to pay for the automobile, and he said he did not have the money, but asked her to have the registration changed to his name, and she told him that the automobile still belonged to her son. She took it from the place in Natick where it was stored after the accident, and had it in her possession at the time of the trial.

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