Norcross v. B.L. Roberts Co.

• Decision Date: 13 October 1921
• Citation: 132 N.E. 399,239 Mass. 596
• Parties: NORCROSS v. B. L. ROBERTS CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

239 Mass. 596

132 N.E. 399

NORCROSS

v.B. L. ROBERTS CO.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 13, 1921.

Exceptions from Superior Court, Worcester County; Henry A. King, Judge.

Action by Charles L. Norcross against the B. L. Roberts Company. Verdict for plaintiff, and defendant beings exceptions. Exceptions overruled.

Highways k183-Disabled motorcycle, pushed along highway, not ‘operated’ or allowed to ‘remain’ on way, within registration law, precluding recovery for injury.

One who went to another town to get a motorcycle to have it reparied, and, finding the engine frozen, proceeded to push the machine along the highway, when he was struck from the rear, was not ‘operating’ the machine, nor was he permitting it to ‘remain’ on the way, within St. 1919, c. 88, providing that no person shall operate any motor vehicle nor permit the same to be operated on or remain on any way unless registered, and so was not precluded from recovering damages, in absence of willful or reckless conduct in striking him.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Operate; Remain.]

John C. Mahoney, of Worcester, for plaintiff.

Frank P. Ryan and Alfred D. Harrington, both or Worcester, for defendant.

DE COURCY, J.

On the evidence the jury could find the facts to be as follows: On December 15, 1919, the plaintiff went to Oxford to get his motorcycle, intending to return with it to Worcester, and have it repaired. Finding the engine frozen he proceeded to push the machine along the highway to Worcester, a distance of five or six miles. At about 4:30 p. m. he arrived in Auburn, and was walking slowly on the extreme right side of the road, when the defendant's auto truck, coming suddenly from behind, ran into him and his machine. The front and rear lights of the motorcycle were lit; but those on the truck were not. The motorcycle was not registered at the time of the accident. The question raised by the exceptions is whether that fact precludes the plaintiff from recovering damages, in the absence of wilful or reckless conduct on the part of the defendant.

It was held in Dudley v. Northampton Street Railway, 202 Mass. 443, 89 N. E. 25,23 L. R. A. (N. S.) 561, that under our statutes a person operating an automobile which was not registered as required by those statutes, was a mere trespasser upon the public way, and had no greater rights against persons who were lawfully using the way than that they should not recklessly or wantonly injure him or his propety. Holden v. McGillicuddy, 215 Mass. 563, 564, 102 N. E. 923, where the later cases are collected. The statute then in force (St. 1903, c. 473, § 3) prohibited the ‘operation’ of unregistered automobiles or motorcycles on public highways. The same provision appears in the General Motor Vehicle Law of 1909, c. 534, § 9. At the time of the accident, however, St. 1919, c. 88, was in force. This substituted for said section 9, the following:

‘No person shall operate any motor vehicle nor shall the owner or custodian of such a vehicle permit the same to be operated upon, or to remain upon, any way in this commonwealth unless the vehicle is registered in accordance with the provisions of this act,’ etc.

In view of the...