Ricker v. Boston Elevated Ry. Co.

Decision Date05 March 1935
Citation290 Mass. 111,194 N.E. 815
PartiesRICKER v. BOSTON ELEVATED RY. CO.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Action of tort by Ralph Ricker against the Boston Elevated Railway Company. From an order vacating a finding for the plaintiff in the sum of $300, and ordering judgment for the defendant to be entered, plaintiff appeals.

Affirmed.

Appeal from Appellate Division of District Court, Northern District Middlesex County; Edward A. Counihan, Jr., Special Judge.

H Kisloff, of Boston, for appellant.

F. W. Crocker, of Boston, for appellee.

CROSBY, Justice.

This is an action of tort to recover for personal injuries sustained by the plaintiff while travelling in an automobile on a public highway in the town of Arlington, in this commonwealth, by the alleged negligence of the defendant, its servants or agents in the operation and maintenance of one of its street cars. By an amendment to the declaration it was further alleged by the plaintiff, in substance, that another automobile was caused to collide with the motor vehicle of the plaintiff due to the gross, willful and wanton misconduct on the part of the defendant, its agents or servants in the operation of one of its street cars. The trial judge found for the plaintiff in the sum of $300, and denied the defendant's first, second and fourth requests for rulings.

It is recited in the report that it was agreed by the defendant that the finding for the plaintiff on the ground of negligence of the defendant was proper unless the motor vehicle, driven by the plaintiff at the time he was injured, was a trespasser upon the highway. It is further recited in the report that the defendant was not guilty of reckless or wanton injury to the plaintiff, and if the automobile driven by the plaintiff was a trespasser on the highway there should be a finding for the defendant.

It appeared at the trial that the automobile operated by the plaintiff at the time of the accident was registered in the name of Edith W. Ricker, whose residence was stated in the application for registration, and in the registration, to be ‘ 78 Kilsyth Road, Brookline, Massachusetts.’ The record shows that Kilsyth road runs both in Brookline and in that part of Boston known as Brighton, and that there is no number 78 Kilsyth road in Brookline; that number 78 Kilsyth road is in that part of Boston known as Brighton, and that the plaintiff's residence is actually in Brighton.

At the close of the evidence the defendant made the following requests for rulings: ‘ 1. Upon all the evidence the...

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